Robinson, Leo Demory

             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                       NO. PD-0421-14



                         LEO DEMORY ROBINSON, Appellant

                                               v.

                                  THE STATE OF TEXAS



         ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                 FROM THE FIFTH COURT OF APPEALS
                          DALLAS COUNTY

      A LCALA, J., filed a concurring opinion in which M EYERS, J OHNSON, and
R ICHARDSON, JJ., joined.

                                CONCURRING OPINION

       I concur in this Court’s judgment affirming the judgment of the court of appeals that

upholds the conviction of Leo Demory Robinson, appellant, but I do not join the majority

opinion. See Robinson v. State, No. 05-12-01502-CR, 

2014 WL 428029

, at *1 (Tex.

App.—Dallas Feb. 3, 2014). In agreement with almost all of this Court’s analysis, I would

identically hold that the evidence is legally sufficient to affirm this conviction, that findings
                                                                                          Robinson - 2

of fact and conclusions of law are inapplicable to sufficiency-of-the-evidence reviews, and

that the State must prove that a defendant acted knowingly or recklessly as to the duty-to-

register element of the offense. Where I part ways with this Court’s majority opinion is with

respect to its decision not to apply a culpable mental state to the latter portion of the statute

that addresses a defendant’s failure to give timely notification of a change in his address. See

T EX. C ODE C RIM. P ROC. art. 62.102(a), 62.055(a). The majority opinion’s holding will result

in this offense essentially becoming a strict-liability offense for which the penalties are

severe, even in the absence of any indication from the Legislature that it intended to impose

strict liability in this context. See id.1

       As this Court’s majority opinion accurately observes, in determining those elements

to which a culpable mental state must apply, an appellate court begins its analysis by

examining the statutory language in order to determine whether it expressly prescribes or

dispenses with a culpable mental state. See Aguirre v. State, 

22 S.W.3d 463, 471-72

 (Tex.

Crim. App. 1999). An examination of the statutory language for the sex-offender-registration

statute reveals that no culpable mental state is expressly prescribed. Article 62.102 of the


       1
          The practical consequences of this Court’s decision will be that a sex offender who timely
appears at a police station in a diligent effort to comply with the law—even if he sits in the police
station day in and day out for twenty-four hours each day patiently waiting and begging to be
registered—will be found guilty of the offense of failure to register as a sex offender if an officer
refuses to register him for any reason whatsoever, whether it be valid or irrational. This is now
essentially a strict-liability crime that gives defendants absolutely no defense to a charge of failure
to give timely notification. As I explain more fully below, this Court’s harsh interpretation will
result in the imposition of criminal penalties upon individuals who lack any criminal intent as to their
conduct but are penalized as a result of their status as sex offenders. This cannot be what the
Legislature intended when it drafted this statute.
                                                                                      Robinson - 3

Code of Criminal Procedure states, “A person commits an offense if the person is required

to register [as a sex offender] and fails to comply with any requirement of [the Chapter 62

sex-offender-registration program].” See T EX. C ODE C RIM. P ROC. art. 62.102(a). With

respect to the pre-move notification portion of Chapter 62, Article 62.055 of the Code states,

“If a person required to register under this chapter intends to change address, regardless of

whether the person intends to move to another state, the person shall, not later than the

seventh day before the intended change, report in person to the local law enforcement

authority . . . .” 

Id.

 art. 62.055(a). The failure-to-register statute, therefore, as applied in the

particular context of a failure to comply with the pre-move notification requirements,

contains two parts: (1) the requirement that a particular individual be subject to registration

as a sex offender, and (2) the individual’s failure to comply with the specific registration

requirements by failing to report in person to the registering authority not later than the

seventh day before an intended change of address. See 

id.

 art. 62.102(a), 62.055(a).

       Next, this Court’s majority opinion determines that, although no mental-state

requirement is expressly included in the statutory language, it is necessary to include one

under the requirements of the Texas Penal Code. See T EX. P ENAL C ODE § 6.02(b), (c);

Aguirre, 

22 S.W.3d at 470

. Again, I agree. Section 6.02 of the Texas Penal Code states, “If

the definition of an offense does not prescribe a culpable mental state, a culpable mental state

is nevertheless required unless the definition plainly dispenses with any mental element.”

See T EX. P ENAL C ODE § 6.02(b). Because the sex-offender-registration statute does not
                                                                                  Robinson - 4

plainly dispense with any mental element, the offense requires proof of a culpable mental

state of either intent, knowledge, or recklessness. See id. § 6.02(c); see also id. § 6.03

(defining culpable mental states).

       Next, the majority opinion determines, and I agree, that in determining the portion or

portions of a statute to which a culpable mental state attaches, a court should examine the

“conduct elements” of the offense to determine whether they are nature-of-conduct, result-of-

conduct, or circumstances-surrounding-conduct elements. See McQueen v. State, 

781 S.W.2d 600, 603

 (Tex. Crim. App. 1989) (citing Lugo-Lugo v. State, 

650 S.W.2d 72, 74

(Tex. Crim. App. 1983)). “An offense may contain any one or more of these ‘conduct

elements’ which alone or in combination form the overall behavior which the Legislature has

intended to criminalize, and it is those essential ‘conduct elements’ to which a culpable

mental state must apply.” 

Id.

 In related contexts, this Court has similarly focused on the

gravamen or “gist” of the offense to determine, for example, those elements for which a

unanimous jury verdict is required. See, e.g., Young v. State, 

341 S.W.3d 417, 424

 (Tex.

Crim. App. 2011) (in jury-unanimity context, observing that “[o]ne looks to the gravamen

or focus of the offense” to determine whether the gravamen is the result of the act, the nature

of the act itself, or the circumstances surrounding that act). An offense may have multiple

“gravamina.” See Price v. State, 

457 S.W.3d 437, 441

 (Tex. Crim. App. 2015).

       Although it recognizes that McQueen is “authoritative in resolving the present case,”

as do I, this Court’s majority opinion does not fully explain the significance of McQueen,
                                                                                   Robinson - 5

which does not limit a culpable mental state requirement to a single element but instead

permits more than one culpable mental state in certain situations. This is the point where I

part ways with the majority opinion.       In McQueen, this Court observed that, “where

otherwise innocent behavior becomes criminal because of the circumstances under which it

is done, a culpable mental state is required as to those surrounding circumstances.”

McQueen, 

781 S.W.2d at 603

. In that case, the Court considered whether the statute

criminalizing unauthorized use of a vehicle required proof of a culpable mental state only as

to the defendant’s conduct in operating the vehicle, or whether it rather additionally required

proof of a culpable mental state as to the lack of the owner’s effective consent. 

Id. at 601-02

.

Although McQueen is factually distinguishable from the present case because it involved a

statute with an expressly prescribed mental state, and, therefore, the question in that case was

“how far down the sentence” the Legislature intended for the mens rea to travel,2 as opposed

to what culpable mental state should apply in the absence of any express indication, this

Court’s approach in that related context was instructive. See 

id.

 In reaching its holding that

a culpable mental state was required both as to the defendant’s conduct in operating the

motor vehicle and as to the lack of consent, the Court in McQueen reasoned that

       [w]hat makes the conduct unlawful is that it is done under certain
       circumstances, i.e., without the owner’s permission.          Therefore, the
       unauthorized use of a motor vehicle is a ‘circumstances’ type offense, and the
       culpable mental state of ‘knowingly’ must apply to those surrounding
       circumstances.

       2
        See DeLay v. State, 

443 S.W.3d 909, 924

 (Tex. Crim. App. 2014) (citing Liparota v.
United States, 

471 U.S. 419

, 424 n.7 (1985)).
                                                                                      Robinson - 6


Id. at 603. McQueen thus stands for the propositions that (1) a culpable mental state is

generally required at least as to any circumstances-surrounding-the-conduct element that

renders otherwise lawful behavior unlawful, and (2) although an offense may be

characterized as a “circumstances” type offense, proof of a culpable mental state may

nevertheless be required as to more than one “conduct element” if those conduct elements

combine to form the overall criminal behavior.3

       This Court’s majority opinion seeks to limit a culpable mental state only to the first

portion of the failure-to-register statute, the existence of a particular individual’s duty to

register as a sex offender, which everyone agrees is a circumstances-surrounding-conduct

element. Under McQueen, this element requires proof of a culpable mental state because it

is, in part, the existence of that circumstance that renders otherwise lawful conduct—moving

to a new address without providing proper notification—unlawful. See McQueen, 

781 S.W.2d at 603

. Although I agree that a culpable mental state applies to the duty to register,

unlike this Court’s majority opinion, I would additionally apply a culpable mental state to the



       3
         See McQueen v. State, 

781 S.W.2d 600, 604

 (Tex. Crim. App. 1989) (stating that “some
form of culpability must apply to those ‘conduct elements’ which make the overall conduct
criminal,” and stating that unauthorized-use statute, a circumstances-type offense, encompassed “two
‘conduct elements,’ viz: that the defendant intentionally or knowingly operated a vehicle (nature of
conduct) knowing that such operation was without the effective consent of the owner (circumstances
surrounding conduct)”); see also DeLay, 

443 S.W.3d at 923

 (Tex. Crim. App. 2014) (analyzing
money laundering statute and holding that culpable mental state was required both as to the nature-
of-conduct element and as to the circumstance-surrounding-conduct element because “[o]therwise,
the statute would attach a mens rea to nothing more than conduct . . . that is not intrinsically
blameworthy”) (citing McQueen, 

781 S.W.2d at 600, 603, 604

).
                                                                                Robinson - 7

second portion of the statute, the failure-to-notify element of the offense, in light of this

Court’s previous statements in Young v. State indicating that the gravamen or focus of the

failure-to-register offense is the “forbidden act” of failing to comply with registration

requirements. See Young, 

341 S.W.3d at 426

.         I would hold that the statute’s focus

encompasses both the nature of the conduct in failing to register as well as the surrounding

circumstances of being required to register, thereby triggering culpable-mental-state

requirements as to both conduct elements. See id.; see also McQueen, 

781 S.W.2d at 603

.

       As the following discussion of Young v. State shows, the duty to register, alone,

cannot be what the Legislature was concerned with when it enacted this statute because one’s

knowledge of his duty to register is not what makes the conduct criminal. Instead, it is the

failure to register when registration is required that the statute is intended to punish. The

suggestion that the gravamen or focus of the offense is simply the duty to register clearly

misunderstands the Legislature’s intent in drafting a statute that punishes sex offenders for

failure to verify their addresses with police departments. Citing to Young, this Court’s

majority opinion determines, and I agree, that a gravamen of the offense is the duty to

register and that the offense is a circumstances-surrounding-conduct offense, which is one

that “prohibit[s] otherwise innocent behavior that becomes criminal only under specific

circumstances.” See Young, 

341 S.W.3d at 423, 427

 (“Because Article 62.055 punishes what

would otherwise be innocent behavior—moving to a new address [without giving proper

notification]—under the circumstances that the person is a registered sex offender, we
                                                                                     Robinson - 8

conclude that the statute creates a ‘circumstances surrounding the conduct’ offense.”). I

agree with this characterization of this portion of Young, but I believe that this is too narrow

a view of what Young actually determined is the gravamen of this offense. In Young, the

defendant, a registered sex offender, moved to a new residence but failed to notify authorities

of his move as required by statute. 

Id. at 419

; see also T EX. C ODE C RIM. P ROC. art. 62.055(a).

He was charged by a two-paragraph indictment alleging that he (1) failed to notify law

enforcement seven days prior to his move, or (2) failed to provide proper notice within seven

days after his move. Young, 

341 S.W.3d at 419

. The jury instructions at Young’s trial

permitted the jury to convict him if it unanimously found that he had failed to report his

change of address, but it did not require unanimity as to whether he did so either before or

after his move. 

Id.

 On discretionary review, Young complained that the jury should have

been required to unanimously agree upon whether he failed to register either before or after

his move, but this Court rejected his complaint. 

Id. at 420

. This Court stated,

       To address appellant’s argument, we look to the gravamen or focus of the
       offense created by Article 62.055(a). The forbidden act is failing to inform law
       enforcement about an impending or completed change of residence. 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 to better 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

 (emphasis added).
                                                                                     Robinson - 9

        Rather than limiting the gravamen of the offense merely to the duty to register, this

passage from Young signals the Court’s understanding that the gravamen of the failure-to-

register offense extends to a defendant’s “forbidden act” of failing to comply with the

registration requirements, which is a nature-of-conduct element of the offense. See 

id.

Concluding that “[t]he focus of the [failure-to-register] statute is on giving notification to law

enforcement and not the means by which a sex offender failed to do so,” this Court described

the gravamen of the offense as also encompassing a nature-of-conduct element. 

Id. at 427

.

It concluded that jury unanimity was required as to Young’s failure to register, but not as to

whether that failure had occurred before or after his move. See 

id. at 427-28

.

       Reading them in conjunction, this Court’s statements in Young suggest that it is the

combined force of the circumstance of being required to register and the failure to comply

with one’s registration obligations that form the overall behavior that the Legislature has

sought to punish. See 

id. at 426-28

; see also McQueen, 

781 S.W.2d at 604

. The Court in

Young placed great emphasis on the statute’s primary purpose of monitoring sex offenders

as a means of thwarting repeat offenses, and it observed that, by failing to comply with the

pre-move notification requirements, an offender “is subverting the objective” of the registry.

Young, 

341 S.W.3d at 426

. This language shows that the nature-of-conduct element in

failing to register is equally important as the circumstance of being required to register

because it is only the combination of those elements that subverts the Legislature’s objective

in monitoring sex offenders and preventing sex crimes. See 

id.

                                                                               Robinson - 10

       In support of this conclusion, I note further that, unlike pure “circumstances” type

offenses, the mere existence of the circumstance in this case—being required to

register—does not, taken on its own, turn the otherwise innocent conduct of changing one’s

address into a criminal offense. After all, a sex offender who moves does not commit an

offense unless he also fails to do something that the law requires of him, namely, providing

the required notification to the authorities. Rather, as this Court suggested in Young, it is

only the combination of the duty to register plus the failure to comply that turns the act of

moving into a criminal offense. See 

id.

 In this sense, the failure-to-register offense is

distinguishable from the purely circumstances-type offenses that were at issue in DeLay v.

State and McQueen because, in those situations, the inherently innocuous conduct was

rendered criminal solely by virtue of the existence of some circumstance. See DeLay v. State,

443 S.W.3d 909, 924

 (Tex. Crim. App. 2014) (otherwise lawful conduct of engaging in

financial transactions would be rendered unlawful solely by circumstance that transactions

involved proceeds of criminal activity); McQueen, 

781 S.W.2d at 603-04

 (conduct at

issue—driving a car—would turn into criminal conduct solely by virtue of lack of owner’s

consent).

       McQueen indicates that, for a “circumstances” type offense, a culpable mental state

is at least required as to the circumstance that renders otherwise innocent conduct unlawful;

McQueen does not, however, suggest that a culpable mental state is required only as to that

circumstance. See McQueen, 

781 S.W.2d at 603

. I conclude that, in accordance with
                                                                                  Robinson - 11

McQueen, offenses may have multiple “essential conduct elements” that trigger culpable-

mental-state requirements if those conduct elements make up the overall behavior that the

Legislature sought to punish. See 

id. at 603

.

       I am unpersuaded that the offense of failure to stop and render aid is instructive

because there the knowledge of the accident and a victim were the gravamen that created the

circumstances-surrounding-the-conduct offense.         See T EX. T RANSP. C ODE § 550.021;

Huffman v. State, 

267 S.W.3d 902, 908

 (Tex. Crim. App. 2008). At a minimum, knowledge

of an accident alone creates a burden on the drivers to stop to exchange insurance

information. In contrast, knowing about a duty to register as a sex offender, alone, shows

only that a defendant knew he was supposed to register, but that does not create any offense.

It is only the additional failure to register as required that creates the criminal penalty.

       Having determined that the failure-to-register offense is properly understood as having

two equally important gravamina—the existence of the duty to register, which is the

circumstances-surrounding-the-conduct portion of the offense, and the failure to do so, which

is the nature-of-conduct portion of the offense—I conclude that a culpable mental state must

apply to both of those elements. See McQueen, 

781 S.W.2d at 604

. Specifically, a mens rea

of knowing or reckless must attach to a defendant’s duty to comply with sex-offender-

registration requirements, and a mens rea of intentional or knowing must attach to his failure

to provide notification of a change of address. See T EX. P ENAL C ODE §§ 6.02(c) (if statute

does not prescribe culpable mental state but one is nevertheless required under Penal Code
                                                                                          Robinson - 12

Section 6.02(b), intent, knowledge, or recklessness suffices to establish criminal

responsibility); 6.03(b), (c) (providing that a person may act “knowingly” or “recklessly”

with respect to the “circumstances surrounding his conduct”); 6.03(a), (b) (explaining that

person may act “intentionally” or “knowingly” with respect to the “nature of his conduct”).4

Like the First Court of Appeals, therefore, I agree that the test should be whether a “rational

jury could have found beyond a reasonable doubt that [a defendant] had notice of the new

registration location and that he intentionally and knowingly failed to verify his registration

information[.]” Harris v. State, 

364 S.W.3d 328, 335-36

 (Tex. App.—Houston [1st Dist.]

2012, no pet.) (holding that evidence was legally sufficient under that standard).

        As to the merits of appellant’s sufficiency-of-the-evidence challenge, I would uphold

appellant’s conviction, even under my interpretation of the statute that includes a culpable

mental state as to the failure-to-register element of the offense. As the court of appeals

discussed, there is ample evidence from which a hypothetical rational fact finder could

conclude that appellant’s failure to provide the proper pre-move notification was intentional

or knowing. A rational fact finder could have reasonably disregarded appellant’s contentions

that the police department refused to accept his notification of a change of address in light

of the conflicting evidence from Detective Benson, who denied appellant’s claims. Viewing


        4
         Though not pertinent to the issue here, I note for purposes of clarity that I also conclude that,
because the means by which a sex offender failed to provide notice about his change of address is
not the gravamen of the offense, the State need not prove a culpable mental state as to the particular
means by which the failure occurred, namely, the lack of in-person notification seven days prior to
a defendant’s change of address, or the lack of notice of his new address seven days after changing
his address. See TEX . CODE CRIM . PROC. art. 62.102(a), 62.055.
                                                                                   Robinson - 13

the evidence in a light most favorable to the trial court’s judgment, appellant had moved from

his aunt’s residence as early as February 2010 based on the evidence that Detective Benson’s

February 27 visit to appellant’s aunt’s residence revealed that appellant no longer lived there.

According to parole officer Phillips’s testimony, appellant told Phillips that he intended to

move from his aunt’s residence on March 19, and Phillips sent a fax to the Glenn Heights

Police Department on April 23 to notify them of appellant’s intent to move. This evidence

is sufficient to show that on or about May 7, 2010, appellant intentionally or knowingly

failed to report in person an intended change of address to the Glenn Heights Police

Department not later than the seventh day before he changed his address, and that he had

knowledge of his obligation to provide such notice under Chapter 62.

       The goal of the sex-offender-registration statute is to allow the public to know where

sex offenders reside in order to better ensure society’s safety while permitting the person to

reenter society. Rather than effectuate this goal, this Court’s majority opinion thwarts that

purpose by interpreting the registration statute as criminalizing every registration failure,

even if the failure was due to police malfeasance, neglect, or oversight, and even if the

defendant diligently made every possible effort to comply with the law. Because the majority

opinion effectively makes the failure-to-register offense a strict-liability crime that will lead

to the imposition of criminal penalties upon sex offenders who lack any criminal intent as to

their conduct in failing to register, I do not join the majority opinion.          I, therefore,

respectfully concur in this Court’s judgment.
                      Robinson - 14

Filed: July 1, 2015

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