Boswell, Mickey, PD-1554-15

Background

Mickey Boswell was tried on a 2010 failure-to-register sex-offender charge; the jury convicted and the trial court also revoked deferred-adjudication in two earlier 2009 cases, imposing concurrent prison terms.
During jury deliberations in the 2010 trial the jury sent a note saying one juror owned property that matched an address Boswell had given and the jury thought that fact "represents dishonesty"; the trial court instructed the jury to disregard and denied Boswell’s motion for mistrial.
Boswell appealed three consolidated causes to the Thirteenth Court of Appeals; the panel affirmed (one justice dissented); Boswell petitioned the Court of Criminal Appeals raising multiple grounds for discretionary review.
Major legal challenges asserted by Boswell: juror misconduct/receipt of other evidence during deliberations (necessitating mistrial), waiver for failing to request juror questioning, entitlement to a mistake-of-law (affirmative defense) jury instruction, ex post facto challenge to quarterly-registration rules, and double-jeopardy claims (theft vs. UUMV and multiple registration counts).
The Court of Appeals upheld the trial court on the juror-note issue (concluding the curative instruction sufficed and no prejudicial receipt of other evidence), rejected the mistake-of-law instruction claim and the ex post facto and double-jeopardy challenges, and affirmed the judgments.

Issues

Issue	Plaintiff's (Boswell) Argument	Defendant's (State) Argument	Held
Juror unsworn testimony / "other evidence" received during deliberations	Juror became an unsworn witness by disclosing personal knowledge of an address; the jury considered it and found Boswell "dishonest," so prejudice was incurable and mistrial required	Jury timely asked the court and received a proper instruction to disregard; instruction cured any error	Court of Appeals: instruction cured error; no mistrial required
Waiver for not requesting juror questioning	The juror misconduct was incurable so questioning would have been futile; failure to seek questioning should not be held against Boswell	Available lesser remedies (instruction, juror questioning) were not pursued by defense; failure to seek them waives complaint	Court of Appeals: defense waived by not pursuing less drastic remedy (juror questioning)
Voir dire / impartial jury (failure to disclose juror's connection)	The juror withheld non-material background fact that produced material bias during deliberations; defendant could not reasonably have anticipated this and voir dire burden should not be imposed	Defense counsel failed to ask specific voir dire questions about addresses; without such questions juror did not "withhold" information—no reversible error	Court of Appeals: no reversible error—defense failed to show juror withheld material information during voir dire
Mistake-of-law (affirmative defense under Tex. Penal Code §8.03)	Conflicting agency and official communications told Boswell he was an annual registrant; some documentation supported his reasonable reliance so the jury should decide the issue	Evidence showed CCPD repeatedly told Boswell he must register quarterly; Boswell did not testify to show reliance; record insufficient to raise the defense	Court of Appeals: no entitlement to instruction—insufficient evidence of reasonable reliance
Ex post facto challenge to quarterly registration requirement	Quarterly reporting (imposed after Boswell’s earlier convictions) is punitive in effect and retroactive application violates ex post facto prohibitions	Registration is regulatory (non-punitive); prior Texas precedent upholding registration and U.S. Supreme Court precedents support non-punitive character	Court of Appeals: quarterly requirement non-punitive; retroactive application does not violate ex post facto
Double jeopardy: Theft and Unauthorized Use of Motor Vehicle / multiple registration counts	Theft and UUMV punish the same conduct; three registration convictions reflect the same moves and therefore multiple punishments violate double jeopardy	Indictments allege separate statutory elements and distinct offenses; legislature intended separate punishments for different registration violations	Court of Appeals: no double-jeopardy violation apparent on face of record; offenses have different elements or are separately punishable

Key Cases Cited

Bustamante v. State, 106 S.W.3d 738 (Tex. Crim. App. 2003) (analysis when jury receives "other evidence" after retiring to deliberate)
Alexander v. State, 610 S.W.2d 750 (Tex. Crim. App. 1980) (juror's unsworn remarks about defendant's character warranted reversal)
Stephenson v. State, 571 S.W.2d 174 (Tex. Crim. App. 1978) (jurors' personal knowledge/adverse comments can require new trial)
Ocon v. State, 284 S.W.3d 880 (Tex. Crim. App. 2009) (mistrial appropriate only in extreme circumstances; lesser remedies like juror questioning should be explored)
Granger v. State, 3 S.W.3d 36 (Tex. Crim. App. 1999) (jury decides reasonableness of mistake-of-law belief; courts may not weigh credibility to deny instruction)
Rodriguez v. State, 93 S.W.3d 60 (Tex. Crim. App. 2002) (sex-offender registration is regulatory, non-punitive under Kennedy factors)
Smith v. Doe, 538 U.S. 84 (U.S. 2003) (Alaska Sex Offender Registration Act held non-punitive; retroactive application not ex post facto)
Ex parte Jefferson, 681 S.W.2d 33 (Tex. Crim. App. 1984) (theft and unauthorized use may raise double-jeopardy concerns when based on same conduct)