Texas Stamp

New Service Rule Applicable to the State Prosecuting Attorney Per Misc. Docket No. 19-012

Texas Rules of Appellate Procedure Rules 80-80.1, effective December 1, 2019
The State Prosecuting Attorney must be served on every petition for discretionary review or brief filed by any party or amicus curiae in the Court of Criminal Appeals, including replies, responses, amendments, and supplements.

HERRON, ROBERT

PD-0853-19 10/09/2019

“In holding the evidence legally insufficient to support the defendant’s conviction for failing to register, specifically, that the State failed to prove that the defendant had a duty to register with the El Paso County Sheriff’s Office, where there was at least ‘some evidence’ (and specifically, direct evidence of the fact) that the Sheriff’s Office was the ‘local law-enforcement agency’ with which Herron was required to register, rather than decide merely whether there was legally sufficient evidence that, when viewed in its proper context and in the light most favorable to the verdict, could support a rational inference that Herron was, indeed, required to register with the Sheriff’s Office, the Eighth Court improperly required the State to meet its evidentiary burden via the Court’s preferred manner of evidentiary proof, effectively increasing the State’s burden.”

Herron was incarcerated and required to register as a sex-offender. Shortly before he was paroled, he was given a form containing the address of the halfway house he was going to and stating that he was required to register with the El Paso County Sheriff’s Office. Herron never showed at the halfway house and was arrested for the parole violation. He was taken to the El Paso County Sheriff’s Office. Detective Gutierrez, the person in charge of registering all sex-offenders in the sheriff’s jurisdiction, reviewed Herron’s registration requirements and again gave him a form designating the El Paso Sheriff’s Office as his registration authority. Herron then served several months at an intermediate-sanctions facility near Lubbock for the parole violation. On his release, he was given a third pre-release form. Although it listed the same halfway house address as his intended residence, it named the Horizon City Police Department as the local registration authority. On his release, Herron absconded and never registered with the El Paso County Sheriff’s Office.

Herron was indicted for failing to register with the local law enforcement authority, namely, the El Paso County Sheriff. At trial, a TDCJ parole division employee testified that when Herron fled she immediately notified Gutierrez, whom she referred to as the “registering agency.” When asked “who’s the local law enforcement authority” Herron was supposed to register with, she said, “Here in El Paso, it’s the El Paso County Sheriff’s Office.” Gutierrez stated that the sheriff was the appropriate registration authority. The trial court convicted Herron.

On appeal, Herron challenged the sufficiency of the evidence to prove that he was obliged to register with the El Paso County Sheriff. The court of appeals agreed. It noted that, under the Code of Criminal Procedure, a parolee living in an unincorporated area is generally required to register with the county sheriff, but a parolee living in an incorporated area is generally required to register with that municipality’s police department. The court of appeals held that the State thus had to prove that the halfway house where Herron intended to reside was outside a municipality. But no one testified to this. Instead, one witness testified that the house was “one of our halfway houses in Horizon City.” Also, the third pre-release form indicated the Horizon City Police Department was the registration authority, and no one testified that Herron had not registered with that department. It found Gutierrez’s testimony that the sheriff had “jurisdiction” over the halfway house was conclusory and could have been nothing more than an expression that a sheriff’s jurisdiction is county-wide.   

The State argues that the court of appeals’s preference that witnesses articulate the statutory basis for an agency’s status as the local law enforcement authority does not render the State’s evidence insufficient. It contends the court of appeals failed to consider the majority of the relevant evidence or view it in the light most favorable to the verdict. It points to the other two pre-release forms, the fact that Herron had registered with the sheriff’s office before and was then released to that same halfway house, and the testimony that the sheriff’s office was the appropriate authority. It cites Goodman v. State, 66 S.W.3d 283 (Tex. Crim. App. 2001), for the proposition that direct evidence of a particular fact is always legally sufficient to support a finding of that fact. It also argues the court of appeals failed to defer to the factfinder’s resolution of both the ambiguity in what Gutierrez meant by “jurisdiction” and the conflict in the pre-release forms.

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