IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-0645-11

MARK ALAN CRABTREE, Appellant

v.

THE STATE OF TEXAS

ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

FROM THE TWELFTH COURT OF APPEALS

SMITH COUNTY

KEASLER, J., delivered the opinion of the Court, in which KELLER,P.J.,MEYERS,

PRICE, WOMACK, and HERVEY, JJ., joined. KELLER, P.J., filed a concurring opinion.

HERVEY, J., filed a concurring opinion. ALCALA, J., filed a dissenting opinion, in which

JOHNSON and COCHRAN, JJ., joined.

O P I N I O N

A jury found Mark Crabtree guilty of the second-degree felony offense of failing to

comply with sex offender registration requirements. Crabtree claims that the evidence is

legally insufficient to support his conviction because the evidence failed to demonstrate that

the Department of Public Safety (DPS) determined his extra-jurisdictional conviction was

substantially similar to a Texas offense requiring registration; therefore the State did not
CRABTREE—2

prove that he was required to register as a sex offender in Texas. We agree and render a

judgment of acquittal.

I. BACKGROUND

In 1989, Crabtree was convicted of the following Washington offenses: rape of a

child in the first degree, child molestation in the first degree, and statutory rape in the first

degree. In January 2009, law enforcement officialsin Smith County, where Crabtree resided,

learned of these prior convictions. Concluding that Crabtree’s previous Washington

convictions required him to register as a sex offender in Texas and that he failed to do so, law

enforcement officers arrested him for failure to comply with registration requirements. The

grand jury returned a true bill of indictment which alleged

on or about the 12 day of January, 2009 . . . MARK CRABTREE did then

th

and there, while being a person required to register with the local law

enforcement authority in the county where the defendant resided or intended

to reside for more than seven days, to-wit: Smith County, because of a

reportable conviction for Rape of a Child in the First Degree, intentionally or

knowingly fail to register with the local law enforcement authority in said

county.

Crabtree sought to quash the indictment alleging the indictment’s language failed to

give him sufficient notice of the charged offense’s felony level under Texas Code of

Criminal Procedure article 62.102 which defines separate offenses for a state-jail felony,

third-degree felony, and second-degree felony. Crabtree also argued that the State failed to

allege that his previous conviction was a reportable conviction as defined in article

62.001(5). The trial court denied his motion.
CRABTREE—3

At trial, the State began its case-in-chief by introducing the judgment and charging

instruments documenting Crabtree’s Washington convictions for rape of a child in the first

degree, child molestation in the first degree, and statutory rape in the first degree, for which

he was sentenced to confinement for a term of 89 months, 41 months, and 61 months,

respectively. The sponsoring witness, Noel Martin, a crime scene investigator with the Smith

County Sheriff’s Office who compared Crabtree’s fingerprints to the documents, testified

that the conduct described in the charging instrument for rape of a child in the first degree

would be considered a first-degree felony aggravated sexual assault of a child in Texas.

The State then called Smith County Sheriff’s Deputy Jeri Scott to establish Crabtree’s

registration requirement. Deputy Scott was in charge of the sex offender registration

program in Smith County. In that capacity, Deputy Scott registered those required to register

as sex offenders, received registrants’ verifications, and performed residence and

employment checks. She also provided guidance to other law enforcement officers on sex

offender registration issues.

In January 2009, Deputy Scott received a call from Whitehouse Police Department

Officer Bob Overman inquiring about Crabtree’s sex offender status. After receiving the

call, Deputy Scott ran Crabtree’s criminal history by searching the TCIC/NCIC database.

She also searched for Crabtree’s name in a local database containing incident reports with

suspect, victim, and witness information. There, she found Crabtree was identified as a

witness in a 2008 burglary case which listed his address as being in Whitehouse, located in
CRABTREE—4

Smith County. Based on her discovery of Crabtree’s conviction for the Washington offense

of rape of a child in the first degree, she determined that Crabtree had a duty to register as

a sex offender in Texas because, in her opinion, the offense was substantially similar to the

Texas offense of aggravated sexual assault of a child. She stated rape of a child in the first

degree was substantially similar to the Texas offense of aggravated sexual assault of a child

and that child molestation in the first degree was substantially similar to a sexually violent

offense, albeit without specifically identifying which sexually violent offense.

By her own admission, Deputy Scott based her substantial-similarity conclusion on

the Washington offense’s title: rape of a child in the first degree. She stated that she did not

know the elements of Washington’s rape of a child offense. She also conceded that DPS is

ultimately responsible for determining whether an out-of-state conviction is substantially

similar to a Texas offense. In fact, Deputy Scott testified that she submitted “paperwork” to

DPS and was still waiting to hear back from them at the time of Crabtree’s trial. This,

according to Deputy Scott, indicated that “[the paperwork’s] either fine or it’s not been

processed.” The State did not proffer any evidence at trial or notify the trial judge that DPS

determined that Crabtree’s Washington conviction was substantially similar to a Texas

offense that required registration as either a “reportable conviction or adjudication.” The jury

found Crabtree guilty of the second-degree felony offense and assessed a punishment of

eighteen years’ confinement and a $10,000 fine.

Crabtree appealed, arguing that the trial court erred in denying his motion to quash the
CRABTREE—5

indictment and that the evidence was insufficient to support his conviction and sentence. As

to the sufficiency of the evidence, Crabtree claimed that Code of Criminal Procedure article

62.003 makes a DPS substantial-similarity determination necessary to prove that an

individual is required to register due to an extra-jurisdictional conviction. The court of

appeals disagreed and held that article 62.003 does not make the requirement to register for

an extra-jurisdictional conviction dependent upon a DPS determination and, therefore, it is

not an element of failure to comply with registration requirements. The court further found

1

the indictment adequate and the evidence sufficient to support the jury’s determination that

Crabtree was required to register because the State introduced into evidence the charging

documents laying out the elements of Crabtree’s prior convictions.

2

We granted Crabtree’s petition for discretionary review to determine whether the court

of appeals erred in finding that (1) a DPS determination is not an element of the offense and,

as a result, the evidence was legally sufficient, and (2) the indictment was sufficient. In

challenging the evidence’s sufficiency, Crabtree limits his arguments to the State’s alleged

failure to prove that he had a “reportable conviction or adjudication” and that he was required

to register as a sex offender. So our legal-sufficiency analysis and conclusion address only

these arguments. Because we find the evidence insufficient to support Crabtree’s conviction,

we need not address the indictment’s sufficiency.

Crabtree v. State, No. 12–09–00322–CR, 2011 WL 1204332, at *8 (Tex.

1

App.—Tyler 2011) (not designated for publication).

Id.

2
CRABTREE—6

II. Legal Sufficiency

In addressing a challenge to the sufficiency of the evidence, a court must determine

whether, after viewing the evidence in the light most favorable to the verdict, any rational

trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

3

The essential elements of the crime are determined by state law. “Under Texas state law,

4

we measure the sufficiency of the evidence ‘by the elements of the offense as defined by the

hypothetically correct jury charge for the case.’” The hypothetically correct jury charge is

5

“one that accurately sets out the law, is authorized by the indictment, does not unnecessarily

increase the State’s burden of proof or unnecessarily restrict the State’s theories of liability,

and adequately describes the particular offense for which the defendant was tried.”

6

The court of appeals stated that the hypothetically correct jury charge in this case

requires the State’s evidence to show that (1) Crabtree was required to register, (2) he failed

to comply with that requirement, (3) his duty to register would expire under article 62.101(a),

and (4) he was required to verify his registration once every 90 days. We disagree that this

7

completely describes all of the necessary elements of the hypothetically correct jury charge.

Jackson v. Virginia, 443 U.S. 307, 318 (1979).

3

Byrd v. State, 336 S.W.3d 242, 246 (Tex. Crim. App. 2011).

4

Id. (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)).

5

Id.

6

See Crabtree, 2011 WL 1204332, at *6.

7
CRABTREE—7

The court of appeals’s conclusion, based on its statutory interpretation, omitted an essential

element that defines Crabtree’s duty to register—that his extra-jurisdictional conviction was

a “reportable conviction or adjudication” because DPS determined it was substantially

similar to a Texas offense requiring registration.

A. Interpretation of Chapter 62

The Legislature defines the elements of an offense as the forbidden conduct, the

required culpability, any required result, and the negation of any exception to the offense.

8

When interpreting statutes, “we seek to effectuate the ‘collective’ intent or purpose of the

legislators who enacted the legislation.” We do this by focusing on the statute’s literal text

9

in an “attempt to discern the fair, objective meaning of that text at the time of its

enactment.” And to this end, we presume that (1) “every word has been used for a purpose

10

and that each word, phrase, clause, and sentence should be given effect if reasonably

possible” and (2) the Legislature intended for the entire statutory scheme to be effective.

11 12

Only if the statute’s plain language is ambiguous or would lead to absurd results that the

Legislature could not have possibly intended, may a court look beyond the text and consult

TEX. PENAL CODE § 1.07(a)(22).

8

Mahaffey v. State, 364 S.W.3d 908, 913 (Tex. Crim. App. 2012) (quoting Boykin

9

v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991)).

Id.

10

Tapps v. State, 294 S.W.3d 175, 177 (Tex. Crim. App. 2009).

11

Mahaffey, 364 S.W.3d at 913; see TEX. GOV’T CODE § 311.021(2).

12
CRABTREE—8

extra-textual sources.

13

Texas Code of Criminal Procedure Chapter 62 defines the scope of Texas’s sex

offender registration program and delineates the legal duties of those who administer it and

those subject to its requirements. A person commits the offense of failure to comply with

registration requirements if the person (1) is required to register and (2) fails to comply with

any requirement of Chapter 62. A person is required to register “with the local law

14

enforcement authority in any municipality where he resides or intends to reside for more than

seven days” if he has a “reportable conviction or adjudication.”

15

Article 62.001(5) defines “reportable conviction or adjudication” as a conviction or

adjudication for specifically identified Texas sex offenses or offenses containing a sexual

component. The definition of “reportable conviction or adjudication ” also includes a

16

“violation of the laws of another state, federal law, the laws of a foreign country, or the

Uniform Code of Military Justice for or based on the violation of an offense containing

elements that are substantially similar to the elements of [an enumerated Texas offense], but

Id. (citing Boykin, 818 S.W.2d at 785–86).

13

TEX. CODE CRIM. PROC. art. 62.102(a) (West 2008).

14

Id. art. 62.051(a).

15

See id. art. 62.001(5) (including, for example, the offenses of continuous sexual

16

abuse, possession or promoting child pornography, burglary of a habitation with the intent

to commit an assaultive sexual offense, and a second conviction for the offense of

indecent exposure.)
CRABTREE—9

not if the violation results in deferred adjudication.” And article 62.003, entitled

17

“Determination Regarding Substantially Similar Elements of Offense,” states, in relevant

part:

(a) For purposes of this chapter, the department is responsible for

18

determining whether an offense under the laws of another state, federal law,

the laws of a foreign country, or the Uniform Code of Military Justice contains

elements that are substantially similar to the elements of an offense under the

laws of this state.

19

Article 62.102(b) sets out several distinct offenses ranging from state-jail to seconddegree felonies that turn on the nature of a person’s registration requirements: (1) whether

a person must register for a ten-year period or for life; and (2) if lifetime registration is

required, whether the person must verify his or her information with law enforcement yearly

or every 90 days.

20

In rejecting Crabtree’s argument that a DPS determination is required to sustain his

conviction, the court of appeals reasoned that, had the “legislature wished to define [out-ofstate] convictions as the same or substantially similar to certain offenses only if the

Department had made such a determination, it would have defined substantially similar

TEX. CODE CRIM. PROC. art. 62.001(5)(H).

17

Id. art. 62.001(1) (“‘Department’ means the Department of Public Safety.”).

18

Id. art. 62.003.

19

Id. art. 62.102(b); Juarez v. State, 198 S.W.3d 790, 793–94 (Tex. Crim. App.

20

2006).
CRABTREE—10

offenses in that way.” The court of appeals noted that article 62.003 does indeed require

21

DPS to make determinations, but the statute “does not condition statutes being substantially

similar on such a determination.”

22

We disagree with the court of appeals’s interpretation because it undermines the

Legislature’s readily apparent statutory scheme. Although the Texas sex offender

registration program is generally complex, the plain language of articles 62.001 and 62.003

clearly demonstrates the Legislature’s intent that whether an extra-jurisdictional conviction

or adjudication triggers a person’s duty to register is controlled by a DPS determination

pursuant to article 62.003. And the language that makes this delegation effective is not

ambiguous nor does it compel absurd results the Legislature could not have possibly

intended.

Article 62.003’s broad introductory phrase, “For purposes of this chapter,” indicates

the Legislature’sintent that article 62.003 appliesto the entire Texassex offender registration

program. This naturally includes the definitions found in article 62.001 containing the broad

extra-jurisdictional “catch-all” provisions requiring substantial similarity. Through article

62.003, the Legislature delegated the authority to DPS to expand the statutory definition of

“reportable conviction or adjudication” by expressly giving it the responsibility to determine

whether the elements of extra-jurisdictional convictions or adjudications are substantially

Crabtree, 2011 WL 1204332, at *7.

21

Id.

22
CRABTREE—11

similar to Texas offenses the Legislature has specifically listed as requiring registration. In

its delegation, the Legislature not only gave DPS the general responsibility to make

substantial-similarity determinations, but was specific in defining DPS’s continued

responsibility in carrying out its mandate. Article 62.003 requires DPS to publish the criteria

used in evaluating elements of extra-jurisdictional offenses and to provide records of extrajurisdictional offenses previously determined to be substantially similar to Texas offenses.

23

Additionally, the inclusion of a specific appellate remedy from a DPS determination in article

62.003(c) makes plain the legal significance of such a determination. Those who wish to

contest DPS’s determination that they must register under Chapter 62 may do so in Travis

County district court. If the Legislature intended a DPS determination to be merely

24

advisory or legally inoperative, there would be no need to create an appellate remedy from

an adverse determination.

The dissent finds ambiguity in articles 62.001(5)(H) and 62.003 as to DPS’s role in

Id. art. 62.003(b) (“The department annually shall provide or make available to

23

each prosecuting attorney's office in this state:

(1) the criteria used in making a determination under Subsection (a); and

(2) any existing record or compilation of offenses under the laws of

another state, federal law, the laws of a foreign country, and the Uniform

Code of Military Justice that the department has already determined to

contain elements that are substantially similar to the elements of offenses

under the laws of this state.”).

Id. art. 62.003(c) (“An appeal of a determination made under this article shall be

24

brought in a district court in Travis County.”); see generally Tex. Dep’t Pub. Safety v.

Garcia, 327 S.W.3d 898 (Tex. App.—Austin 2010, pet. denied).
CRABTREE—12

determining substantial similarity. Assuming such ambiguity exists, article 62.003’s

legislative history leads us to the same conclusion based on the statutes’ plain language: the

Legislature intended for DPS to decide whether extra-jurisdictional convictions are

reportable convictions or adjudications. As the dissent notes, article 62.003’s creation was

a direct response to federal litigation. The Legislature was responding to Creekmore v.

25

Attorney General of Texas, where Creekmore challenged Texas’s sex-offender registration

program claiming that the program, among other things, violated his right to due process

because “(1) it does not indicate who determines whether an offense under [Uniform Code

of Military Justice] is substantially similar to a listed offense under the Texas Penal Code;

(2) it does not provide any process by which an individual determined to have a reportable

conviction may challenge that determination; and (3) it does not give clear notice as to when

one is deemed convicted two or more times of an offense.” According to House Bill 2113’s

26

bill analysis, article 62.003 “would make clear who decides whether an offense from another

jurisdiction would trigger Texas registration requirements and would allow appeals from

See House Research Organization, Bill Analysis, Tex. H.B. 2113, 77th Leg.,

25

R.S. at 4 (2001) (hereinafter “Bill Analysis”); see also Public Hearing on S.B. 1648

Before the Sen. Crim. Justice Comm., 77th Leg. (statement of Dean Johnson, Police Legal

Advisor for the Beaumont Police Department, Mar. 21, 2001) available at

http://www.senate.state.tx.us/avarchive/?mo=03&yr=2001&lim=0.

116 F. Supp. 2d 767, 769–70 (E.D. Tex. 2000) (magistrate’s opinion on

26

Creekmore’s Motion for Preliminary Injunction); see generally Creekmore v. Attorney

General of Texas, 341 F. Supp.2d 648 (E.D. Tex. 2004).
CRABTREE—13

these decisions.” The bill analysis directly addresses DPS’s responsibility and its impact:

27

“DPS would have to determine whether an offense committed under another state’s laws,

federal law, or the Uniform Code of Military Justice contained elements that were

substantially similar to the elements of an offense under Texas laws that would trigger a

current law requirement that the person register as a sex offender.”

28

Purportedly relying on H.B. 2113’s bill analysis, the dissent concludes a DPS

substantial-similarity determination was intended only to apply to DPS in its administrative

role or in the “civil-regulatory context.” The quoted language in H.B. 2113’s bill analysis

refutes this interpretation. Also, limiting DPS’s responsibility to make these determinations

to its role as the sex-offender registration program’s administrator is not dispositive. Even

if the dissent is correct in its assessment that a DPS determination was intended solely for the

program’s administration, this conclusion does not necessarily preclude our holding that DPS

is solely responsible for identifying who must comply with Chapter 62 based on extrajurisdictional convictions. It is clear to us that identifying those subject to the registration

requirement and its attendant conditions is the critical element that defines the scope of the

sex-offender registration program and DPS’s administration of it. The dissent concedes as

much when it suggests that the DPS-maintained compilation of offenses already determined

to be substantially similar exists “in order to assist law-enforcement agencies in registering

Bill Analysis at 4.

27

Id. at 3.

28
CRABTREE—14

sex offenders.”

29

The State notes that we have previously made substantial-similarity determinations

as a matter of law without referencing article 62.003, presumably in support of its position

30

that it is preferable to have these substantial-similarity determinations made by the judicial

branch, as opposed to “some out-of-court agency.” The dissent finds the State’s argument

and its supporting authority persuasive; we do not. The State acknowledges that our

decisions in Prudholm v. State, Ex parte White, and Ex parte Warren are distinguishable

from the present issue. Prudholm and Ex parte White considered whether out-of-state

convictions used for enhancement purposes were substantially similar under Texas Penal

Code § 12.42. While neither of those cases involved sex-offender registration nor article

31

62.003’sinterpretation, they do indicate thatsubstantial-similarity issues are matters of law.

32

Ex parte Warren did, however, involve sex-offender registration, but presented its

registration issue in a distinguishable posture. Warren contested the imposition of sexoffender registration requirements as a condition of parole as a violation of his due process

rights because he was not given prior notice and an opportunity to respond before the

Post, at 21.

29

See Ex parte Warren, 353 S.W.3d 490, 495–98 (Tex. Crim. App. 2011);

30

Prudholm v. State, 333 S.W.3d 590 (Tex. Crim. App. 2011); Ex parte White, 211 S.W.3d

316, 319 (Tex. Crim. App. 2011).

Prudholm, 333 S.W.3d at 592; Ex parte White, 211 S.W.3d at 318.

31

Prudholm, 333 S.W.3d at 592, 599–600; Ex parte White, 211 S.W.3d at 318,

32

319–20.
CRABTREE—15

conditions were imposed. In holding that the sex-offender registration condition did not

33

violate due process, we relied on the analysis used in Prudholm and concluded that, for

34

purposes of Chapter 62, Warren’s conviction for the Illinois offense of contributing to the

sexual delinquency of a child was substantially similar to the Texas offense of indecency

with a child. First, the limited issue confronting the Court in Ex parte Warren was whether

35

the imposition of sex-offender registration conditions violated Warren’s procedural due

process rights as defined by the Fifth Circuit. Second, because the question of the propriety

36

of a registration requirement as a condition of parole is so fundamentally distinct from the

statutory definition of a criminal offense, Ex parte Warren lends little insight to the present

issue. While we held that Warren’s out-of-state conviction was substantially similar to

indecency with a child for purposes of article 62.001(5)(H)—which would statutorily require

Ex parte Warren, 353 S.W.3d at 491.

33

Prudholm, 333 S.W.3d at 592–95 (holding that to find two offenses

34

substantially similar, a review of each offense elements must (1) display a high degree of

likeness, but may be less than identical, and (2) be substantially similar with respect to the

individual or public interests protected and the impact of the elements on the seriousness

of the offenses)

Id. at 497–98.

35

Id. at 492–93 (noting our adoption of the Fifth Circuit’s holding in Meza v.

36

Livingston, 607 F.3d 392 (5th Cir. 2010), that, among other things, a parolee is entitled to

written notice that sex-offender conditions may be imposed as a condition of release and a

hearing which allows the parolee to be heard and present evidence; however if the parolee

has been convicted of a sex offense, he has received all the process due).
CRABTREE—16

a parole panel to impose sex-offender registration conditions —our conclusion that

37

Warren’s conviction was a reportable conviction or adjudication requiring Warren to register

was a more expansive holding than was required to resolve Warren’s due process claim. We

have upheld sex-offender registration parole conditions on a much lesser finding. Because

38

Ex parte Warren addressed a due process claim in the context of parole conditions, was

overly broad, and did not contemplate the definition of the offense of failure to comply with

registration requirements, we are not persuaded that it has precedential or persuasive value

to the present issue.

In addition to Ex parte Warren, the dissent claims our opinion in Ex parte Harbin

39

supports its position that substantial-similarity determinations are questions of law that can

be determined only by the judge presiding over the criminal proceeding. This interpretation

of Ex parte Harbin is mistaken. In addressing Harbin’s claim of actual innocence for failing

to comply with registration requirements based on two out-of-state convictions, we held that,

due to the various savings clauses found in the legislative amendments to Chapter 62, the

TEX. GOV’T CODE § 508.186 (“A parole panel shall require as a condition of

37

parole or mandatory supervision that a releasee required to register as a sex offender

under Chapter 62, Code of Criminal Procedure: (1) register under that chapter . . . .”).

See Ex parte Campbell, 267 S.W.3d 916, 922 (Tex. Crim. App. 2008)

38

(concluding that a parole panel was authorized to impose sex-offender registration

requirements based on a single conviction for indecent exposure because a parole panel

has broad authority to impose any reasonable condition that is designed to protect or

restore the community, protect or restore the victim, or punish, rehabilitate, or reform the

defendant.)

297 S.W.3d 283 (Tex. Crim. App. 2009).

39
CRABTREE—17

convictions alleged in the indictment did not trigger an obligation to register. We also

40

acknowledged that article 62.0101—article 62.003’s predecessor—gave DPS the

responsibility to make substantial-similarity determinations retroactively. And to illustrate

the effect of DPS’sretroactive responsibility, we explained its implications on all of Harbin’s

previous convictions based on a DPS publication, contained in the record, which listed

California offenses it determined to be substantially similar to Texas offenses. We held

41

that, under the version of Chapter 62 in effect at the time of the opinion, Harbin would need

to register for his 1988 conviction for lewd or lascivious acts—the same offense that we held

did not trigger Chapter 62’s applicability at the time of the alleged offense—and his 1995

conviction for sexual battery because DPS determined in 2006 that both of these convictions

are reportable convictions in Texas. We further stated, “Applicant will not need to register

42

for his 1994 and 1996 convictions for annoying or molesting a child because . . . [DPS] does

not list California Penal Code § 647.6 as a reportable conviction.” The dissent’s claim that

43

we viewed the lack of a DPS determination as “persuasive evidence” and “not conclusive

evidence of a duty to register” is a plain misreading of the case. Ex parte Harbin’s

discussion of substantial similarity could arguably be labeled dicta and therefore not binding

Id. at 286–87.

40

Id. at 287.

41

Id.

42

Id.

43
CRABTREE—18

precedent. Regardless, it certainly does not stand for the proposition that the presiding judge

is the only one who can make a substantial-similarity determination. If anything, Ex parte

Harbin stands for the opposite proposition: a DPS substantial-similarity determination

controls whether an individual has a duty to register based on an out-of-state conviction.

While our conclusion today is a result of interpreting articles 62.001(5)(H) and 62.003, it is

consistent with and now firmly establishes what Ex parte Harbin implicitly and necessarily

presumed.

Citing to Texas Government Code § 311.021, the State maintains this statutory

interpretation would violate the presumption that “a result feasible of execution is intended.”

The State goes on to assert that, “It is completely unfeasible to expect DPS to be able to

maintain a constant vigil upon the criminal law of the entire world for a period of time

spanning the conceivable lifetimes of any potential violators of Art. 62.102.” The court of

44

appeals expressed similar sentiments in recognizing that the “statute appears to place a very

large burden on the Department.” The State, like the court of appeals and the dissent,

45

appears to suggest that adhering to article 62.003’s plain language creates an insurmountable

State’s Br. on the Merits 13.

44

Crabtree, 2011 WL 1204332, at *7 (“But the task would have to be larger than

45

a simple survey of every law in the entire world because neither the laws of this state nor

any other are static. And so this duty would seem to entail keeping track of the legislative

process in the fifty states, every foreign country, and the U.S. federal system. Finally,

because some sex offenders serve lengthy sentences before being released, the

Department would be responsible for a survey of previous laws of the fifty states, every

foreign country, and the U.S. federal system and military code.”).
CRABTREE—19

burden for DPS and as a result is unwise. This position, however, is quite different from

suggesting that article 62.003’s language leads to absurd results that the Legislature could

not have intended. The wisdom of a particular statute is outside this Court’s purview.

46

Relying on statutory construction aids, the dissent takes issue with the consequences

of our interpretation which it views as thwarting the objective of Texas’s sex-offender

registration program. The dissent first claims that our interpretation creates a “loophole” that

encourages non-registration because it removes the burden on offenders to initiate

registration and hinders the State’s ability to prosecute those with out-of-state sex offenses

despite their knowing or intentional failure to register. However, our decision is limited to

defining the statutory elements of the failure-to-comply-with-registration-requirements

offense viewed through the hypothetically correct jury charge. If, through our restrained

approach in interpreting the plain language enacted by the Legislature, we have exposed a

weakness in the state’s statutory scheme not intended by the Legislature, it has the ability to

remedy it. Like our inability to opine on a law’s wisdom, we cannot judicially amend or

effectively delete statutory language in the name of interpretation.

The dissent also claims that our interpretation puts individuals’ substantive and

procedural due process rights at risk “because a defendant could be subjected to criminal

See generally Montgomery v. State, 170 S.W.2d 750, 753 (Tex. Crim. App.

46

1943) (“The courts are not concerned with the wisdom of legislation, this being a matter

resting exclusively with the legislature.”).
CRABTREE—20

liability on the basis of a mere administrative determination.” The dissent’s due process

47

concerns revolve around a defendant’s inability to contest a DPS determination within the

criminal prosecution itself and present a complete defense. The dissent’s claim that, as a

result of ourstatutory interpretation, a defendant convicted for failing to register would likely

have a valid due process claim based on being deprived of the opportunity to defend himself,

is questionable. The dissent itself acknowledges that the Supreme Court has held that, to be

consistent with constitutional protections, there must be some meaningful review when

administrative determinations play a critical role in the subsequent imposition of a criminal

sanction. Although the adequacy and the proper implementation of such review are outside

48

the scope of this case, article 62.003’s appellate process presumably provides such

meaningful review of a DPS determination in that it affords those affected a reasonable

opportunity to be heard and present evidence and—according to the dissent—“is frequently

49

Post, at 20.

47

See, e.g., United States v. Mendoza-Lopez, 481 U.S. 828, 837–38 (1987); Estep

48

v. United States, 327 U.S. 114, 121–22 (1946); Yakus v. United States, 321 U.S 414, 444

(1944).

See Yakus, 321 U.S. at 433 (holding that the Emergency Price Control Act’s

49

judicial review’s restriction of an administrative determination to a single court did not

violate due process as long as the process affords a reasonable opportunity to be heard

and present evidence); see also Mendoza-Lopez, 481 U.S. at 838–40 (holding that a

collateral challenge to a prior deportation order is only permitted in a criminal prosecution

based on the contested order when the deportation proceeding effectively eliminates the

right of judicial review).
CRABTREE—21

used by potential registrants.” The federal district court’s finding in Creekmore supports

50

this view. The court found that newly enacted article 62.003 provided procedural due

process because the statute charged a specific agency with the responsibility of making the

substantial-similarity determination that used established procedures and a means of appeal

from the determination. And courts have generally rejected substantive due process claims

51

based on an obligation to register as a sex offender. Further, it is far from certain that a due

52

process claim based on a deprivation of “a meaningful opportunity to present a complete

defense” in this context will have merit. The dissent’s broad assertion that our Chapter 62

interpretation potentially infringes upon this right, without more, is unsubstantiated. And the

cases it relies upon are unhelpful in this regard.

53

Establishing that Crabtree had a reportable conviction or adjudication under the

See post, at 14 n.4 (citing court-of-appeals decisions addressing article 62.003

50

appeals).

Creekmore, 341 F.Supp.2d at 667; see generally Meza v. Livingston, 607 F.3d

51

392 (5th Cir. 2010); Coleman v. Dretke, 395 F.3d 216 (5th Cir. 2004).

See, e.g., Doe v. Moore, 410 F.3d 1337, 1345 (11th Cir. 2005) (“The circuit

52

courts that have considered this substantive due process argument regarding sex offender

registries have upheld registration and publication requirements finding no constitutional

infirmities.”); Doe v. Tandeske, 361 F.3d 594, 597 (9th Cir. 2004) (per curiam) (holding

that persons convicted of serious sex offenses do not have a fundamental right to be free

from registration requirements).

See post, at 21 n.9 (citing Crane v. Kentucky, 476 U.S. 683, 690 (1986) (holding

53

that a state procedural rule excluding evidence regarding a confession’s voluntariness

violated the defendant’s meaningful opportunity to present a complete defense) and

California v. Trombetta, 467 U.S. 479, 485 (1984) (holding that this principle was not

violated when breath-test evidence was not preserved by the State)).
CRABTREE—22

definition of article 62.001(5)(H) is a condition precedent to proving he had a duty to register

and failed to comply with that burden. Without proving that Crabtree’s conviction satisfied

54

this definition, he could not have committed the charged offense because he would not labor

under an obligation to register. Based on the plain language of articles 62.001(5)(H) and

55

62.003, we hold that a DPS substantial-similarity determination is an essential element of the

offense of failure to comply with registration requirements.

Finding that a DPS determination was not an element of the offense, the court of

appeals found that the evidence was sufficient to establish substantial similarity between

Crabtree’s convictions and an enumerated Texas offense without a DPS determination. The

56

court of appeals noted that the State’s witness’s evaluation of the substantial similarity of

Crabtree’s Washington convictions based solely on its title was “problematic,” but it

nonetheless found the evidence sufficient because the State introduced Crabtree’s charging

documents that contained the elements of his previous convictions.

57

We address the court’s sufficiency conclusion because it is a direct result of its

misreading of articles 62.001(5)(H) and 62.003 and inappropriately assigns to the jury the

Id. art. 62.102(a); TEX. PENAL CODE § 6.01(c) (“A person who omits to perform

54

an act does not commit an offense unless a law as defined by Section 1.07 provides that

the omission is an offense or otherwise provides that he has a duty to perform the act.”).

See id.

55

Crabtree, 2011 WL 1204332 at *9.

56

Id.

57
CRABTREE—23

burden of deciding what the law is. The court of appeals would permit the jury to determine

whether Crabtree’s previous conviction or adjudication was substantially similar to a Texas

offense requiring registration. But whether a particular extra-jurisdictional conviction or

adjudication is a “reportable conviction or adjudication” under article 62.001(5)(H) is a

matter of law. While a jury must find that Crabtree has a reportable conviction or

58

adjudication that requires him to register, it is not the jury’s role to determine whether a

particular conviction or adjudication legally satisfies article 62.001(5)(H). In a case in which

a duty to register is imposed by virtue of an extra-jurisdictional conviction or adjudication,

this distinction between issues of fact and law is appropriately addressed by a jury charge that

instructs the jury in the abstract and correctly sets out the law of the case. Having

59

concluded that a DPS determination is an essential element of the charged offense, we turn

to the evidence the State adduced at trial and whether “any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt.”

B. The Evidence is Insufficient

The record is silent as to whether DPS previously determined that the Washington

offense rape of a child in the first degree was substantially similar to a Texas offense

statutorily defined as a “reportable conviction or adjudication.” Indeed, in its closing

See Prudholm, 333 S.W.3d at 592, 599–600.

58

TEX. CODE CRIM. PROC. art. 36.13 (stating, “the jury is the exclusive judges of

59

the facts, but is bound to receive the law from the court and be governed thereby.”); see

id. art. 36.14 (“[T]he judge shall . . . deliver to the jury . . . a written charge distinctly

setting forth the law applicable to the case.”).
CRABTREE—24

argument and in response to Crabtree’s closing remarks, the State expressly advocated that

a DPS determination was not required to prove its case and that the jury, on its own, could

find that Crabtree’s conviction for rape of a child was substantially similar to the offense of

aggravated sexual assault in Texas. Instead, the State offered Detective Martin’s and Deputy

Scott’s lay person legal conclusions that the Washington offense was substantially similar

to the Texas offense of aggravated sexual assault of a child. In light of our interpretation of

the relevant Chapter 62 articles, this is not sufficient. From the guilty verdict it returned, we

can assume the jury found Crabtree was previously convicted of rape of a child in the first

degree. However, the additional step in the jury’s required adjudicatory process—that rape

of a child in the first degree is a “reportable conviction or adjudication”—is not supported

by the record and its absence leads us to conclude that no rational juror could find that

Crabtree had an obligation to register as a sex offender beyond a reasonable doubt.

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Therefore, we find the evidence insufficient to sustain Crabtree’s conviction.

III. CONCLUSION

Holding that the evidence waslegally insufficient to support Crabtree’s conviction for

the offense of failure to comply with registration requirements, we reverse the judgments of

the courts below and enter a judgment of acquittal.

See Jackson, 443 U.S. at 318.

60
CRABTREE—25

DATE DELIVERED: October 31, 2012

PUBLISH