Jerry L. King v. The State of Texas--Appeal from 40th District Court of Ellis County

IN THE

TENTH COURT OF APPEALS

No. 10-07-00329-CR

Jerry L. King,

Appellant

v.

The State of Texas,

Appellee

From the 40th District Court

Ellis County, Texas

Trial Court No. 31913CR

MEMORANDUM Opinion

King appeals his conviction for failure to comply with registration requirements for persons with multiple reportable convictions for sexually violent offenses. See Tex. Code Crim. Proc. Ann. arts. 62.001(5)-(6), 62.058(a), 62.102(a) (Vernon 2006). We affirm.

Sufficient Evidence. In King s first issue, he contends that the evidence was legally insufficient.

When we review the evidence under the legal sufficiency standard set out in Jackson v. Virginia, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)); accord Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007); Wilhoit v. State, 638 S.W.2d 489, 494 (Tex. Crim. App. 1982). A reviewing court s duty . . . does require it to ensure that the evidence presented actually supports a conclusion that the defendant committed the crime that was charged. Williams at 750.

Texas Code of Criminal Procedure Chapter 62 creates the offense of failure to comply with registration requirements in the following terms: A person commits an offense if the person is required to register and fails to comply with any requirement of this chapter. Tex. Code Crim. Proc. Ann. art. 62.102(a). Chapter 62 generally describes persons subject to registration under the chapter as follows: A person who has a reportable conviction . . . shall register, or if the person is a person for whom registration is completed under this chapter, verify registration . . . with the local law enforcement authority in the municipality or county where the person resides or intends to reside for more than seven days. Id. art. 62.051(a) (Vernon 2006); see id. art. 62.001(5) (Vernon Supp. 2007). Chapter 62 specifically requires that:

A person subject to registration under this chapter who has for a sexually violent offense been convicted two or more times . . . shall report to the local law enforcement authority . . . not less than once in each 90-day period following the date the person first registered under this chapter to verify the information in the registration form maintained by the authority for that person.

Id. art. 62.058(a). For purposes of Code of Criminal Procedure Article 62.058, a person complies with a requirement that the person register within a 90-day period following a date if the person registers at any time on or after the 83rd day following that date but before the 98th day after that date. Id.

The State points primarily to the following evidence. Because of King s two reportable convictions for aggravated rape, he was required to register as a sex offender with the Ellis County Sheriff every ninety days. SeePenal Code, 63d Leg., R.S., ch. 883, 1, sec. 21.03(a), 1973 Tex. Gen. Laws 883, 916 (amended 1981) (repealed 1983) (current version at Tex. Penal Code Ann. 22.021(a) (Vernon Supp. 2007)). When Deputy Steve McKinney became the sheriff s deputy responsible for registering sex offenders for Ellis County, he orally went over the registration requirements again with all of the county s registrants and gave them written notice of the requirements; and they, including King, signed acknowledgments that they had received and understood the requirements. See Tex. Code Crim. Proc. Ann. art. 62.051(b)-(d) (Vernon 2006). King testified that he knew the registration requirements.

King last registered on October 3, 2006. When King then registered, he stated his residence as an address on East Pecan Tree Road, a trailer home outside the city limits of Waxahachie, in Ellis County. The ninetieth day thereafter was January 1, 2007. On January 1, 2007, Deputy Amy Ellison became the sheriff s deputy responsible for registering sex offenders.

The ninety-eighth day, the last day on which King could register in compliance with the registration requirements, after King had last registered was January 9, 2007. Deputies McKinney and Ellison testified that King had not contacted them to register. Deputy Ellison first became aware of King when King s parole officer contacted her to tell her of a warrant for King s arrest for a violation of parole requirements. By the time of King s arrest in February, 2007, he had not registered.

King testified that he was not certain that he had attempted to contact the sheriff s office to register. King testified that he decided not to report to the sheriff s office because he knew that he would be arrested for the parole violation if he reported. In order to avoid sheriff s deputies, King was moving his possessions out of his residence on Pecan Tree Road and into a storage locker by night, and sleeping in the storage locker by day. When a deputy sheriff attempting to execute the arrest warrant on King did find him on Pecan Tree Road, King gave the deputy a false name and date of birth. King told that deputy that the next time when [King] g[o]t[] out . . . they d never find him again. (4 R.R. at 55.)

Viewing the evidence in the light most favorable to the prosecution, we hold that a rational juror could have found beyond a reasonable doubt that King intentionally did not comply with the ninety-day sex-offender registration requirement. The evidence was legally sufficient.

We overrule King s first issue.

Objections to Evidence. In King s second issue, he contends that the trial court erred in overruling King s objections to evidence. King complains generally of evidence of his possession of about three and a half grams of methamphetamine and some marihuana. See Tex. Health & Safety Code Ann. 481.102(6) (Vernon Supp. 2007), 481.112, 481.115, 481.120-481.121 (Vernon 2003).

[A] trial court s ruling admitting or excluding evidence is reviewed on appeal for abuse of discretion. Ramos v. State, 245 S.W.3d 410, 417 (Tex. Crim. App. 2008) (citing State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006) (op. on orig. submission)); accord Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000); Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh g). The abuse-of-discretion standard requires an appellate court to uphold a trial court s admissibility decision when that decision is within the zone of reasonable disagreement. Powell v . State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001); accord Bigon v. State, Nos. PD-1769-06 & 1770-06, 2008 Tex. Crim. App. LEXIS 1, at *13-14 (Tex. Crim. App. Jan. 16, 2008); Green v. State, 934 S.W.2d 92, 102 (Tex. Crim. App. 1996); Montgomery at 391.

In the punishment phase of trial, evidence is admissible as to any matter the court deems relevant to sentencing. Tex. Code Crim. Proc. Ann. art. 37.07, 3(a)(1) (Vernon Supp. 2007). The scope of punishment evidence includes any . . . evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible . . . . Id. Such evidence is admissible, but only if the state can offer proof that would allow a reasonable fact-finder to conclude, beyond a reasonable doubt, that the appellant could be held criminally responsible for the act. Delgado v. State, 235 S.W.3d 244, 252 (Tex. Crim. App. 2007) (citing Fields v. State, 1 S.W.3d 687, 688 (Tex. Crim. App. 1999)).

King argues that the evidence showed beyond a reasonable doubt that [he] was not present at the time of the search of the premises where the methamphetamine and marihuana were found and seizure of that contraband. (Br. at 20; see id. at 21, 23.) We understand King to argue the lack of an affirmative link between himself and the contraband. [T]he so-called affirmative links rule . . . protects the innocent bystander a relative, friend, or even a stranger to the actual possessor from conviction merely because of his fortuitous proximity to someone else s drugs. Evans v. State, 202 S.W.3d 158, 161-62 (Tex. Crim. App. 2006) (internal footnote omitted); see Duff v. State, 546 S.W.2d 283, 287 (Tex. Crim. App. 1977); Hineline v. State, 502 S.W.2d 703, 705 (Tex. Crim. App. 1973).

When a defendant is not in exclusive possession or control of the place where the drugs are found, the State must affirmatively link the defendant with the drugs. [Hudson v. State, 128 S.W.3d 367, 374 (Tex. App. Texarkana 2004, no pet.).] Factors which have been considered affirmative links include: 1) presence when the search was executed; 2) contraband in plain view; 3) proximity to and accessibility of the contraband; 4) the accused being under the influence of contraband when arrested; 5) the accused s possession of other contraband when arrested; 6) the accused s incriminating statements when arrested; 7) attempted flight; 8) furtive gestures; 9) odor of the contraband; 10) presence of other contraband; 11) the accused s right to possession of the place where contraband was found; and 12) drugs found in an enclosed place. Id.

Medina v. State, 242 S.W.3d 573, 576 (Tex. App. Waco 2007, no pet.) (mem. op.); see Harris v. State, 994 S.W.2d 927, 933 (Tex. App. Waco 1999, pet. ref d); Foster v. State, 814 S.W.2d 874, 882 (Tex. App. Beaumont 1991, pet. ref d). It is . . . not the number of links that is dispositive, but rather the logical force of all of the evidence, direct and circumstantial. Evans, 202 S.W.3d at 162.

Evidence that a defendant was not at a residence when contraband was found there does not conclusively show the absence of affirmative links to the contraband. See Salazar v. State, 87 S.W.3d 680, 684 (Tex. App. San Antonio 2004, no pet.).

King testified that his address, and his only residence, was that on East Pecan Tree Road, where he lived with his son.

On January 2, 2007, law-enforcement officers went to the Pecan Tree Road address. King was not there at the time; his son and others were. The officers saw marihuana in plain view and smelled the odor of burnt marihuana. In a search pursuant to a search warrant, officers found, in plain view in King s bedroom, methamphetamine and marihuana, along with a photograph of King.[1] The officers found other methamphetamine and drug paraphernalia such as syringes in King s bedroom. Also in the trailer were documents from an employment agency addressed to King at the address on East Pecan Tree Road, and documents from the Board of Pardons and Paroles concerning the revocation of King s parole. King s son stated that King had been home earlier in the day.

King s son called King on the telephone during the search, and King stated that he was in Oklahoma, though he was nearby at a friend s house. For the reasons stated above in our determination of King s first issue, King otherwise sought to avoid law-enforcement officers.

King s sex-offender counselor testified that King s drugs of choice included methamphetamine and marihuana. (6 R.R. at 104.) King s parole officer testified that King s parole had been revoked in the past, and King had received sanctions short of revocation, because of King s use of controlled substances. The reason for King s parole-revocation warrant in January, 2007, was his positive urinalysis for marihuana.

King had the right to possession of the premises on East Pecan Tree Road, where the contraband was accessible to him. King was known to possess the controlled substances found there. King sought to evade law-enforcement officers there. The trial court did not abuse its discretion in finding that reasonable jurors could have believed that King possessed the methamphetamine and marihuana.

We overrule King s second issue.

Conclusion. Having overruled King s issues, we affirm.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Affirmed

Opinion delivered and filed May 28, 2008

Do not publish

[CRPM]

[1] The State points to evidence of marihuana found in plain view in the common area of King s residence and methamphetamine found in plain view in King s bedroom, to which evidence King did not object. An error [if any] in the admission of evidence is cured where the same evidence comes in elsewhere without objection. Lane v. State, 151 S.W.3d 188, 192 (Tex. Crim. App. 2004) (quoting Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003)) (alteration in Lane); see Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998); Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991); Hudson v. State, 675 S.W.2d 507, 511 (Tex. Crim. App. 1984). We assume without deciding that the evidence admitted without objection did not cure any error in the admission of evidence to which King did object.