The Texas Prosecutor, May-June 2018

Proving failure to register as a sex offender

Failure to register as a sex offender is a deceptively difficult charge to plead and prove. In the abstract, it seems easy: Dude didn’t register! But criminal law is never that simple.
    One difficulty is always figuring out which way to charge the offense. Chapter 62 of the Code of Criminal Procedure provides a lot of requirements for sex offender registration. In a typical case, a defendant might appear to violate multiple requirements: If he just up and moves, he may have failed to give seven days’ notice before moving, then failed to register within seven days of moving, but because each one is a different offense, the State must pick one and get a unanimous verdict on it.
    Further complicating matters is the question of a mental state: The State must show that the defendant acted intentionally, knowingly, or recklessly. But historically it has been an open question as to which element that mental state attached. If the State has to prove the mental state for the specific failure to register—i.e., that the defendant intentionally failed to register seven days before a move—these cases would become much harder to win.
    In two cases, one in 2015 and one this February, the Court of Criminal Appeals has resolved most of the ambiguity regarding the mental state for this offense, and it did so in a way that should make prosecutors happy.

Robinson v. State
In 2015, the Court of Criminal Appeals seemed to solve the problem with Robinson v. State.1 In that case, the Court held that the evidence must show that the defendant acted intentionally, knowingly, or recklessly, but only regarding the defendant’s duty to register. That is, the State had to prove the defendant’s awareness of his duty to register. The Court held there was no requirement to show a mental state regarding a particular failure to register.
    You’ll notice I said seemed to solve the problem. The majority opinion in Robinson got only five votes. The other four judges were concerned that the majority had set up a strict liability offense.2 Those four would have required the State to prove a mental state for the actual omission for which the defendant was charged (for instance, failing to provide seven days’ notice prior to a move). Considering that the State often cannot show why a defendant doesn’t properly register, this requirement would make it much harder to get convictions for this offense.
    After this narrow win for the State, it looked bad when, a mere seven months later, the Court granted review of a case that presented nearly the same question as Robinson. Was the Court re-evaluating its position?

Febus v. State
Albert Febus was a sex offender who was registered as living at 6110 Glenmont Drive, Apartment 57, in Houston.3 In 2013 he changed his registration to 6110 Glenmont, Apartment 45, but when officers did a compliance check at that location, he was not to be found. The State charged him with intentionally or knowingly failing to notify police of an address change.
    At trial, Febus claimed that he had moved to a neighboring building in the same complex, 6100 Glenmont Dr., Apartment 45. Febus’s defense was that he had told the registration officer that he was moving to 6100, but through some clerical error that was not his fault, the documents came out 6110. The manager who handled both buildings testified she’d never seen Febus at the complex, but Febus called as a witness the individual listed on the lease at 6100 Glenmont Dr., Apartment 45, who testified that Febus informally subleased from him and was only ever at the apartment between 6 p.m. and 9 a.m. (when the manager was not there).
    The jury found Febus guilty.
    On direct appeal, in a brief written before Robinson was handed down, Febus argued that the State had failed to prove what it pleaded: that he intentionally or knowingly failed to give his new address to police. According to Febus, the evidence showed that perhaps some mistake had occurred, but at any rate the State had failed to show any intent to not register.
    In a short, unpublished opinion handed down three months after Robinson, the First Court of Appeals did little more than point out that Robinson defeated Febus’s claim.4 Because the State had proven Febus was aware of his registration obligations, the evidence was sufficient to support the conviction, regardless of whether the State proved any intent or knowledge behind this specific failure to register. Febus petitioned for discretionary review.
    After the Court of Criminal Appeals granted review, a six-judge majority affirmed the