Herron, Robert
PD-0853-19
Tex. Crim. App.Jun 30, 2021Background
- Robert Herron, a convicted sex offender, signed pre-release forms stating he would live at a halfway house at 1700 Horizon Blvd North (El Paso area) and would register with local law enforcement upon release.
- The June 27, 2016 pre-release form identified Horizon City Police Department as the local authority for verification; a February 2016 form had identified the El Paso County Sheriff’s Office.
- At the bus station in Lubbock while being transported to El Paso, Herron absconded and was later arrested in Aransas County; he never arrived at the El Paso halfway house and never appeared in El Paso to register.
- The State indicted Herron for failing to register in El Paso County with the El Paso County Sheriff’s Office; at trial he was convicted and sentenced to 25 years.
- The El Paso Court of Appeals reversed, concluding the State failed to prove the correct local authority; the Texas Court of Criminal Appeals affirmed the reversal but on the ground that Herron never had a statutory duty to register in El Paso because he never arrived there.
- The CCA rendered judgment of acquittal: Chapter 62’s registration duty is triggered by physical arrival/residence or an intent to reside for more than seven days, and the indictment was limited to El Paso.
Issues
| Issue | State's Argument | Herron's Argument | Held |
|---|---|---|---|
| Whether Herron had a duty under Art. 62.051(a) to register in El Paso despite never arriving there | The pre-release paperwork and notifications identifying an El Paso address/authority show Herron had the duty to register in El Paso | Article 62 requires physical presence (reside or intend to reside for >7 days and arrival); Herron never arrived, so no El Paso duty | No duty was triggered absent arrival; evidence insufficient to prove failure to register in El Paso — conviction overturned and acquittal rendered |
| Whether the conviction may be sustained on an alternative, uncharged theory (e.g., failure to register in Aransas County after absconding) | The State urged the evidence supports an alternative theory that Herron failed to register where he actually went | Herron: conviction must track the indictment; State cannot convict on a different, unpleaded offense | Conviction cannot be upheld on an unalleged alternative; material variance would occur — alternative theory not allowed under this indictment |
| Whether the State had to prove the specific local law enforcement agency (Horizon City PD v. El Paso County Sheriff) with which Herron allegedly failed to register | The State asserted documents and testimony tied Herron to the El Paso County Sheriff as the applicable authority | Herron and court noted ambiguity in forms/testimony; but CCA did not need to resolve agency identity because no duty arose without arrival | CCA declined to decide agency-identity question here; primary holding rests on lack of statutory duty due to no arrival |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (establishes standard for sufficiency of the evidence)
- Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997) (defines the hypothetically-correct jury charge for sufficiency review)
- Young v. State, 341 S.W.3d 417 (Tex. Crim. App. 2011) (unit of prosecution for Chapter 62 offenses ties offenses to particular moves/locations)
- Ramjattansingh v. State, 548 S.W.3d 540 (Tex. Crim. App. 2018) (material-variance analysis for charging/proof)
- Alfaro-Jimenez v. State, 577 S.W.3d 240 (Tex. Crim. App. 2019) (sufficiency review sometimes requires statutory construction)
- Gollihar v. State, 46 S.W.3d 243 (Tex. Crim. App. 2001) (materiality of variance in charge/allegations)
- Robinson v. State, 466 S.W.3d 166 (Tex. Crim. App. 2015) (Article 62.102(a) as umbrella statute; requirement to identify single statutory duty alleged)