Andrew MacEdonio Cortez A.K.A Andrew Martinez Cortz v. State ( 2019 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-18-00178-CR
___________________________
ANDREW MACEDONIO CORTEZ A.K.A ANDREW MARTINEZ CORTEZ,
Appellant
V.
THE STATE OF TEXAS
On Appeal from Criminal District Court No. 4
Tarrant County, Texas
Trial Court No. 1527326R
Before Sudderth, C.J.; Kerr and Pittman, JJ.
Memorandum Opinion by Chief Justice Sudderth
MEMORANDUM OPINION
In a single point, Appellant Andrew Macedonio Cortez appeals his conviction
for violation of the sex-offender-registration requirements. See Tex. Code Crim. Proc.
Ann. art. 62.055(a). Cortez argues that the trial court erred by denying his motion to
quash the indictment because it impermissibly charged two offenses as one count.
Because the court of criminal appeals has held that the crime of failure to register is
“one crime per move,” we overrule Cortez’s sole point and affirm the trial court’s
judgment.
Background
Because Cortez was convicted of aggravated sexual assault with a deadly
weapon in 2003, he was required to register as a sex offender. In 2015, Cortez
registered with a Kennedale address. He registered with the same Kennedale address
in 2016 and February 2017. However, in May 2017, a detective with the Abilene
Police Department contacted Kennedale Police Sergeant Dagnell, the officer who had
overseen Cortez’s sex-offender registration, and informed Sergeant Dagnell that
Cortez was living in Abilene. Appellant never registered as a sex offender in Abilene.
In a single-count, two-paragraph indictment, the State charged Cortez with
failure to comply with sex-offender-registration requirements. It alleged in the first
paragraph that Cortez had failed to report his anticipated move date and new address
to the Kennedale Police Department. The State alleged in the second paragraph that
Cortez had failed to register his new address with the Abilene Police Department.
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Cortez filed a motion to quash the indictment in which he alleged that the
indictment impermissibly charged two separate offenses as one count when it should
have charged the offenses as two counts, permitting the jury to render a
nonunanimous verdict. The trial court disagreed and overruled the motion to quash.
A jury then found Cortez guilty, and the trial court assessed his punishment at 30
years’ confinement.1
Discussion
Cortez argues on appeal that the trial court erred by not quashing his
indictment because the offense of not notifying Kennedale police before he moved
and not notifying Abilene police after he moved are two separate offenses.
Article 62.055(a) of the code of criminal procedure requires any sex offender
subject to Chapter 62’s registration requirements to notify local law enforcement in
person of any planned change of address no later than the seventh day before the
intended change. Tex. Code Crim. Proc. Ann. art. 62.055(a). Once the registered sex
offender moves, the same statute requires the offender to report to local law
enforcement within the municipality or county to which the person has moved and
provide his proof of identity and address. Id.
The court of criminal appeals has held that the failure of a sex offender to
report an intended and then completed change of address is “one crime per move,”
1
Cortez pleaded true to the habitual offender notice in his indictment, and the
trial court found the enhancement allegations true.
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not two, meaning that the legislature’s intended unit of prosecution is one offense for
each change of address. Young v. State, 341 S.W.3d 417, 426 (Tex. Crim. App. 2011).
The gravamen of article 62.055(a), then, is the obscuring of a sex offender’s
whereabouts. As the court has explained,
The primary purpose of creating and maintaining a sex-offender registry
is to “give local law enforcement officers a means of monitoring sex
offenders who are living within their jurisdiction in order better to
thwart repeat offenses.” Knowing where a sex offender lives is arguably
the simplest and best way to monitor him. By failing to report where he
is residing, the sex offender is subverting the objective of the registry.
The community and law enforcement want to know where the sex
offender lives so they may take proper precautions.
Id. at 426 (footnotes omitted).
The court of criminal appeals has likened failing to register as a sex offender to
failing to stop and render aid. Id. at 426–27; see Tex. Transp. Code Ann. § 550.021(a).
As the court explained, section 550.021(a) provides three ways in which an accident-
involved driver may commit the offense of failing to stop and render aid: the failure
to stop at the scene of the accident, the failure to return to the scene of the accident,
or the failure to remain on the scene. See Young, 341 S.W.3d at 427 (quoting Huffman
v. State, 267 S.W.3d 902, 904 (Tex. Crim. App. 2008)); see also Robinson v. State, 466
S.W.3d 166, 171–72 (Tex. Crim. App. 2015) (referencing Young’s analogy to the
failure-to-stop-and-render-aid statute in identifying culpable mental state for chapter
62). Each of these is simply a different manner and means of violating the same
statute, and jurors “need not be unanimous concerning the specific manner and
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means of the violation” to convict a defendant of failing to stop and render aid.
Young, 341 S.W.3d at 427.
Similarly, article 62.055(a)’s sex offender notification “can be violated in either
of two ways. The focus of the statute is on giving notification to law enforcement
and not the means by which a sex offender failed to do so.” Id. Therefore, the court
held, “Jurors must unanimously agree only that a sex offender failed to fulfill his
reporting duty; they are not required to agree as to how he failed that duty.” Id. at
427–28; see also Thomas v. State, 444 S.W.3d 4, 9 (Tex. Crim. App. 2014) (stating that
under article 62.055, a hypothetically correct jury charge would require a jury to find a
defendant guilty “if (1) he was required to register as a sex offender under Chapter 62
of the Texas Code of Criminal Procedure, and (2) he failed to comply with Article
62.055(a) of the Texas Code of Criminal Procedure” and referencing Young for the
proposition that allegations of different violations of article 62.055 are “alternative
manners and means of committing a single offense”).
In an attempt to circumvent Young, Cortez argues that the court of criminal
appeals negated its holding in Young three months after the opinion was released with
the opinion of Cosio v. State, 353 S.W.3d 766 (Tex. Crim. App. 2011). We disagree.
Compare id. at 772–76 (discussing units of prosecution in aggravated sexual assault and
indecency cases),2 with Thomas, 444 S.W.3d at 10 (reaffirming Young’s “alternative
2
In Cosio, the appellant was convicted of two counts of aggravated sexual
assault of a child and two counts of indecency with a child by contact. 353 S.W.3d at
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manners and means of committing a single offense” in discussing the hypothetically
correct jury charge in a failure-to-comply-with-article-62.055 case), and Herrell v. State,
No. 02-16-00432-CR, 2018 WL 1865881, at *3 (Tex. App.—Fort Worth Apr. 19,
2018, pet. ref’d) (mem. op., not designated for publication) (“There are two alternative
manners and means of violating article 62.055(a).”).
As Young is directly on point and as its applicability was reaffirmed by the court
in Thomas three years after Cosio, we overrule Cortez’s sole point.
Conclusion
Having overruled Cortez’s sole point, we affirm the trial court’s judgment.
/s/ Bonnie Sudderth
Bonnie Sudderth
Chief Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: March 28, 2019
769. He complained on appeal that because there was evidence of several instances of
sexual misconduct that could have satisfied the charged offenses, the trial court erred
by failing to instruct the jury that it must be unanimous about which instance of
criminal conduct satisfied each offense charged. Id. The court of criminal appeals
agreed. Id. But Cosio did not involve a charge that alleged different manners and
means of violating the same statute. Instead, the charge in Cosio alleged different
allegations of sexual misconduct, each of which constituted a separate unit of
prosecution. Because each different allegation of sexual misconduct was a single
incident of criminal conduct constituting a separate unit of prosecution, the State was
required to elect as to which act it would rely upon for the conviction. Id. at 772–76.
Under those facts, without a unanimity instruction, the charge impermissibly allowed
for the possibility that the jury rendered a non-unanimous verdict. Id. at 774.
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