Mickey Boswell v. State, 13-11-00786-CR

Background

Mickey Boswell, previously convicted (1994) of two indecency-with-a-child felonies and later (2004) of failing to register, was placed on deferred-adjudication community supervision in 2009 for multiple offenses that included sex-offender registration conditions.
After release from jail in March 2010, Boswell was informed at registration that he was required to verify registration quarterly; he signed verification forms acknowledging the 90‑day requirement on multiple occasions but failed to register within 90 days after the June 22, 2010 verification and was arrested on October 30, 2010.
Boswell was convicted by a jury in cause 10-CR-4228-G for failing to register (quarterly requirement) and the trial court revoked community supervision in two companion 2009 causes, adjudicated guilt, and imposed concurrent prison sentences (including 50 years for theft and multiple 20-year terms).
On appeal Boswell raised seven issues: juror misconduct/receipt of other evidence during deliberations; jury-charge defects (including right to jury determination of quarterly requirement and mistake-of-law instruction); ex post facto challenge to quarterly reporting; and several challenges to the 2009 plea-based proceedings (sufficiency, double jeopardy, improper enhancement).
The court consolidated the appeals, found Boswell waived most claims attacking the underlying plea proceedings, and affirmed the convictions and sentences.

Issues

Issue	Boswell's Argument	State's Argument	Held
1) Jury received "other evidence" during deliberations / impartial jury	Jury learned a juror owned property Boswell had given as an address; mistrial required and jury was biased	Jury promptly asked court, was instructed to disregard; counsel did not pursue juror questioning; no incurable prejudice shown	Denied: curative instruction effective; no abuse of discretion in denying mistrial; no voir dire misconduct shown because defense did not ask questions to reveal bias
2) Jury-charge errors: right to jury determination of quarterly requirement	Asked for jury finding whether 1999/2001 amendments applied to him (fact issue about supervision status)	Statute's 2001 transition language applies to persons required to register before Sept. 1, 2001; no fact issue	Denied: statutory construction resolved as matter of law; quarterly requirement applied to Boswell
3) Jury-charge errors: mistake-of-law instruction	Entitled to instruction because Boswell relied on agency statements that he was an annual registrant	Boswell was expressly told by CCPD personnel in person to register every 90 days; no evidence he reasonably relied on contrary written official statement	Denied: defendant failed to produce evidence of reasonable reliance on an official written statement; no instruction required
4) Ex post facto challenge to quarterly reporting	Retroactive quarterly requirement increases punishment for prior convictions	Quarterly reporting is regulatory, non-punitive (no restraint or supervision like probation); court should apply Mendoza‑Martinez/Kennedy factors	Denied: quarterly reporting is non-punitive in effect; retroactive application does not violate ex post facto clause
5) Challenges to 2009 plea proceedings (sufficiency, double jeopardy, enhancement)	Various challenges to original guilty pleas, double jeopardy between theft and unauthorized use, and improper enhancement using prior convictions	Issues were waived by not timely appealing deferred-adjudication judgments; record not void; elements differ so double jeopardy not clear on face of record; prior convictions did not improperly enhance these particular sentences	Denied: waiver applies; judicial confessions supported pleas; offenses have distinct elements under cognate-pleadings; enhancements permissible here

Key Cases Cited

Bustamante v. State, 106 S.W.3d 738 (Tex. Crim. App. 2003) (jury receipt of other evidence may require mistrial unless curative instruction effective)
Ocon v. State, 284 S.W.3d 880 (Tex. Crim. App. 2009) (mistrial is extreme remedy; review for abuse of discretion and availability of less drastic alternatives)
Rodriguez v. State, 93 S.W.3d 60 (Tex. Crim. App. 2002) (sex-offender registration statute analyzed as non-punitive under Kennedy factors)
Ex parte Robinson, 116 S.W.3d 794 (Tex. Crim. App. 2003) (registration requirements not cruel and unusual; non-punitive analysis)
Smith v. Doe, 538 U.S. 84 (U.S. 2003) (Alaska sex-offender registration law held non-punitive under Kennedy factors; retroactive application not ex post facto)
Abdnor v. State, 871 S.W.2d 726 (Tex. Crim. App. 1994) (two-step analysis for jury charge error and harm standards)
Kennedy v. Mendoza‑Martinez, 372 U.S. 144 (U.S. 1963) (seven-factor test for determining whether a statutory scheme is punitive)
Blockburger v. United States, 284 U.S. 299 (U.S. 1932) (same-elements test for double jeopardy)
Menefee v. State, 287 S.W.3d 9 (Tex. Crim. App. 2009) (judicial confession accompanying guilty plea suffices to support conviction)