Buck Douglas Crawford, III v. State ( 2019 )

NO. 12-18-00214-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
BUCK DOUGLAS CRAWFORD, III, § APPEAL FROM THE 217TH
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE § ANGELINA COUNTY, TEXAS
MEMORANDUM OPINION
Buck Douglas Crawford, III appeals his conviction for failure to register as a sex offender.
In a single issue, he urges the trial court erred in providing an overbroad “on or about” instruction
in the jury charge. We affirm.
BACKGROUND
Appellant was charged by indictment for failure to register as a sex offender. The State
alleged that Appellant moved to 1407 Oak Hill Place in Lufkin, Texas, and failed to register with
the Lufkin Police Department within the seven-day requirement. Appellant pleaded “not guilty”
and the matter proceeded to a jury trial. The jury found Appellant guilty as charged in the
indictment. After a trial on punishment, the jury assessed Appellant’s punishment at imprisonment
for eighty months. This appeal followed.
CHARGE ERROR
In Appellant’s sole issue, he contends the trial court erred when it provided an overbroad
“on or about” instruction.
Standard of Review
The review of an alleged jury charge error in a criminal trial is a two-step process. Abdnor
v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994). First, an appellate court must determine
whether there was error in the jury charge. Id. Then, if there is charge error, the court must
determine whether there is sufficient harm to require reversal. Id. at 731–32. The standard for
determining whether there is sufficient harm to require reversal depends on whether the appellant
objected to the error at trial. Id. at 732.
If the appellant objected to the error, the appellate court must reverse the trial court’s
judgment if the error “is calculated to injure the rights of the defendant.” TEX. CODE CRIM. PROC.
ANN. art. 36.19 (West 2006). This means no more than that there must be some harm to the accused
from the error. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). An appellant who
did not raise the error at trial can prevail only if the error is so egregious and created such harm
that he has not had a fair and impartial trial. Id. “In both situations the actual degree of harm must
be assayed in light of the entire jury charge, the state of the evidence, including the contested issues
and weight of probative evidence, the argument of counsel and any other relevant information
revealed by the record of the trial as a whole.” Id.
The record must show that the defendant suffered actual harm, not merely theoretical
harm. Id. at 174. In assessing whether the trial court erred by denying a requested defensive
instruction, an appellate court must examine the evidence offered in support of the defensive issue
in the light most favorable to the defense. Farmer v. State, 411 S.W.3d 901, 906 (Tex. Crim. App.
2013).
Generally, a trial court must deliver to the jury “a written charge distinctly setting forth the
law applicable to the case.” TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007). The charge must
include an instruction on any defensive theory raised by the evidence and properly requested by
the defendant. Booth v. State, 679 S.W.2d 498, 500 (Tex. Crim. App. 1984). But the trial court
has no duty to instruct the jury sua sponte on unrequested defensive issues because they are not
“the law applicable to the case.” Vega v. State, 394 S.W.3d 514, 519 (Tex. Crim. App. 2013). A
defendant who fails to preserve his request for a defensive instruction cannot complain about its
omission on appeal because he procedurally defaulted his complaint. Id.
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Analysis
The indictment alleged that Appellant, “on or about the 8th day of December, A.D., 2017,”
“did while knowing that he was a person required to register under the Sex Offender Registration
Program … fail to register with the local law enforcement authority in Lufkin, Texas, namely the
Lufkin Police Department, while having two reportable convictions, deferred adjudications, or
adjudications for the offenses of Sexual Assault of a Child and Sexual Assault, having resided in
Lufkin, Texas for more than seven days.” On appeal, Appellant complains of the following “on
or about” instruction that the trial court provided to the jury sua sponte within the charge:
By the term “on or about the 8th day of December, A.D., 2017” is meant any day before the date
of the indictment, February 23, 2018.
Appellant did not object to the inclusion of this instruction in the jury charge at trial. Appellant
now argues that this instruction was overbroad and improper because it “permitted the jury a much
broader chronological parameter than the law allows.” He further urges that the evidence at trial
indicated multiple bases to trigger a duty to register or report both before and after the date
mentioned in the indictment.
The Code of Criminal Procedure requires a sex offender to register with local law
enforcement no later than the seventh day after his arrival in a municipality or county if the person
resides or intends to reside in the city or county for more than seven days. TEX. CODE CRIM. PROC.
ANN. art. 62.051(a) (West 2018). Appellant argues that because the failure to register statute is
time-sensitive, the trial court’s instruction permitted the jury to consider events after the date
alleged in the indictment. As a result, he contends the instruction is overbroad.
In support of his argument, Appellant relies on Taylor v. State, 332 S.W.3d 483, 487 (Tex.
Crim. App. 2011). The defendant in Taylor was charged by three separate indictments with
aggravated sexual assault. The complainant testified to sexually assaultive conduct committed by
the defendant both before and after the defendant’s seventeenth birthday. Taylor, 332 S.W.3d at
485–86. However, “a person may not be prosecuted for or convicted of any offense committed
before reaching 17 years of age . . . ” TEX. PENAL CODE ANN. § 8.07(b) (West Supp. 2018).
Although the indictments alleged the offenses were committed on dates that followed the
defendant’s seventeenth birthday, the trial court’s charge instructed the jurors that the State was
not bound by the specific dates alleged and that they could convict the defendant if the offenses
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were committed at any time within the period of limitations. Taylor, 332 S.W.3d at 487–88. Nor
were the jurors instructed that the defendant could not be convicted for conduct committed before
his seventeenth birthday. Id. at 486; see TEX. PENAL CODE ANN. § 8.07(b). The court of criminal
appeals found that, under the circumstances, Section 8.07(b) of the penal code was the law
applicable to the case on which the trial court had a duty to instruct the jury even in the absence of
a request or objection by the defendant. Taylor, 332 S.W.3d at 488–89. The Taylor court
concluded “that a jury charge is erroneous if it presents the jury with a much broader chronological
perimeter than is permitted by law.” Id. at 488. Thus, the absence of a Section 8.07(b) instruction,
when combined with evidence of the defendant’s conduct while a juvenile and the instruction that
a conviction could be based on any conduct within the limitations period, “resulted in inaccurate
charges that omitted an important portion of the law applicable to the case.” Id. at 489.
Here, however, the jury heard evidence of only one alleged violation of the registration
requirement. The evidence presented at trial demonstrates that Appellant moved to Lufkin from
outside Angelina County in November 2017 and did not register with the Lufkin Police
Department before he was arrested in December 2017.
Specifically, Don Douglas, who supervises the sex offender registration program for the
Lufkin Police Department, testified that an offender must report to the police department within
seven days of moving to Lufkin and that Appellant did not register in 2017. On November 29,
2017, she received a call from Appellant that he was living in Lufkin at 1407 Oak Hill Place.
Douglas informed Appellant that he had seven days to register. Officer Alberto Ibarra testified
that he asked Appellant on November 29, 2017, if he had registered and Appellant nodded
affirmatively. Appellant’s uncle testified that Appellant lived with him at 1407 Oak Hill Place
near Thanksgiving or Christmas 2017. He further stated that Appellant enrolled his daughter in
school within a week of moving to Lufkin. Appellant’s aunt testified that she learned that
Appellant was in Lufkin on November 20, 2017. She later learned that he had arrived on
November 19. Detective Stephen Abbott testified that he arrested Appellant on December 8, 2017,
for failure to register.
Accordingly, the jury did not hear evidence of Appellant’s conduct beyond the period
alleged in the indictment and upon which they could convict him for offenses with which he had
not been charged or upon which they were statutorily prohibited from convicting Appellant, as in
Taylor. Thus, we conclude the charge did not present the jury with a much broader chronological
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parameter than permitted by law. See e.g. Herrell v. State, No. 02-16-00432-CR, 2018 WL
1865881, at *9 (Tex. App.—Fort Worth Apr. 19, 2018, pet. ref’d) (mem. op., not designated for
publication) (“Because Herrell was charged only with failing to report an intended change of
address under article 62.055(a) and the indictment alleged, and the evidence showed, only one
change of address, the trial court’s ‘on or about’ instruction did not authorize the jury to convict
Herrell for an offense other than the one charged in the indictment”); see also e.g. Kelley v. State,
429 S.W.3d 865, 879–80 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d) (concluding that trial
court instruction was erroneous because jury heard evidence of conduct beyond the period alleged
in the indictment). As a result, the charge was neither inaccurate nor erroneous. Because the trial
court did not err in giving the “on or about instruction,” we need not conduct an egregious harm
analysis. See Posey v. State, 966 S.W.2d 57, 60 (Tex. Crim. App. 1998) (review for egregious
harm required only if the charge contains error); see also Cox v. State, No. 12-15-00228-CR, 2016
WL 4538610, at *1 (Tex. App.—Tyler Aug. 31, 2016, no pet.) (mem. op., not designated for
publication). We overrule Appellant’s sole issue.
DISPOSITION
Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.
GREG NEELEY
Justice
Opinion delivered June 28, 2019.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
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COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
JUNE 28, 2019
NO. 12-18-00214-CR
BUCK DOUGLAS CRAWFORD, III,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 217th District Court
of Angelina County, Texas (Tr.Ct.No. 2018-0100)
THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court below
for observance.
Greg Neeley, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.