COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-12-00159-CR

DANIEL GLENN OSTRANDER APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY

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MEMORANDUM OPINION1

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Appellant Daniel Glenn Ostrander appeals his conviction for failure to 

comply with the statutory registration requirements for sex offenders. See Tex. 

Code Crim. Proc. Ann. art. 62.102(a) (West 2006). In five points, Ostrander 

argues the evidence was insufficient to support his conviction and the trial court 

erred by overruling his objections to improper jury argument and hearsay 

 1

See Tex. R. App. P. 47.4.
2

evidence. We modify the judgment and affirm it as modified. See Tex. R. App. 

P. 43.2(b).

I. BACKGROUND

On January 28, 1986, Ostrander was indicted for sexual assault of a child.2

 

The indictment contained an enhancement paragraph, alleging that Ostrander 

had been convicted of burglary of a motor vehicle in 1984.3

 On July 29, 1986,

Ostrander pleaded guilty to sexual assault of a child, and the trial court, under a 

plea-bargain agreement, sentenced Ostrander to 25 years’ confinement. The 

judgment did not contain a finding regarding the enhancement paragraph.

Ostrander was released on parole on July 23, 2010.

4

 As part of his parole 

conditions, Ostrander was required to register with the Fort Worth Police 

Department (“the department”) within seven days of his release or at a later date 

if the department’s policies provided for a later registration date. Ostrander also 

was required to wear an ankle monitor.

 2

Ostrander was eighteen at the time of the offense, and the victim was 

fifteen. The evidence conflicted regarding whether the victim was Ostrander’s 

friend or a stranger.

3

Although unclear from the record, it appears Ostrander was seventeen 

when this offense was committed.

4

The record indicates that Ostrander was unsuccessfully released on 

parole before this date. Further, Ostrander was convicted of aggravated assault 

with a deadly weapon on June 20, 2005, and was sentenced to four years’ 

confinement to be served consecutively to his 25-year sentence.
3

After his release, Ostrander began living at the Fort Worth Transitional 

Center (“the center”), which is “a halfway house for people on parole who have 

no other place[] to go when they come out of the penitentiary.” While at the 

center, parolees may not leave without permission and must enter all 

appointments and other reasons for leaving the center on a daily-activity log. 

Ostrander’s case worker made an August 18 appointment for Ostrander to 

register at the department. Although this appointment was made for later than 

seven days after Ostrander’s July 23 release, the department was “backlogged,” 

which resulted in appointments for sex-offender registration being made for 

“several weeks after [a parolee’s] arrival” in Fort Worth.

On August 11, Ostrander’s parole officer, Salvatore Caruso, reminded 

Ostrander verbally and in writing that he had a registration appointment on 

August 18. On August 14, Caruso discovered that the monitoring service had 

lost contact with Ostrander’s ankle monitor, which meant that the “strap had been 

removed intentionally or unintentionally.” Caruso contacted the center and 

discovered that Ostrander “was no longer in residency there” and had left the 

center without prior approval the same day the monitoring service lost contact 

with Ostrander’s ankle monitor. Ostrander did not appear for his registration 

appointment on August 18. On October 27, Ostrander voluntarily turned himself 

in to police officers.
4

Ostrander was indicted for failure to register as a sex offender with a

habitual-offender notice.5

 Ostrander pleaded not guilty on October 25, 2011, and 

a jury was unable to reach a unanimous verdict. A second trial began April 9, 

2012, and Ostrander pleaded not guilty to the indictment and not true to the 

habitual-offender notice.

6

 The second jury found Ostrander guilty of failing to 

comply with the sexual-offender-registration requirements, found the habitualoffender notice true, and sentenced him to 50 years’ confinement.

II. DISCUSSION

A. EVIDENCE SUFFICIENCY

In his first two points, Ostrander argues that the evidence is insufficient to 

support his conviction, which violates his rights to due process under the United 

States and Texas Constitutions. Indeed, due process requires that a conviction 

be supported by sufficient evidence. See Jackson v. Virginia, 443 U.S. 307, 

315–16, 99 S. Ct. 2781, 2786–87 (1979). In our due-process review of the 

sufficiency of the evidence to support a conviction, we view all of the evidence in 

the light most favorable to the verdict to determine whether any rational trier of 

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

 5

This notice alleged Ostrander’s 1984 conviction for burglary of a vehicle 

and 2005 conviction for aggravated assault with a deadly weapon.

6

Although the judgment reflects that Ostrander pleaded true to the 

habitual-offender notice, the trial court actually entered a plea of not true on 

Ostrander’s behalf and charged the jury that Ostrander had pleaded not true to 

the habitual-offender notice.
5

doubt. Id. at 319, 99 S. Ct. at 2789; Wise v. State, 364 S.W.3d 900, 903 (Tex. 

Crim. App. 2012). The standard of review is the same for direct and 

circumstantial-evidence cases; circumstantial evidence is as probative as direct 

evidence in establishing the guilt of an actor. Isassi v. State, 330 S.W.3d 633,

638 (Tex. Crim. App. 2010); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 

2007). The sufficiency of the evidence is measured by the elements of the 

offense as defined by a hypothetically correct jury charge. See Malik v. State, 

953 S.W.2d 234, 240 (Tex. Crim. App. 1997).

Here, a hypothetically correct jury charge required proof that (1) Ostrander 

had a reportable conviction, (2) he was required to register, (3) he failed to 

comply with that requirement, and (4) his duty to register had not expired. See 

Crabtree v. State, 389 S.W.3d 820, 824–25 (Tex. Crim. App. 2012). Ostrander 

limits his insufficiency arguments to the State’s alleged failure to prove that he 

failed to comply with the registration requirement. Specifically, Ostrander asserts 

that Caruso’s actions obstructed him from fulfilling the registration requirement; 

thus, there is no evidence that he acted intentionally or knowingly when he failed

to register.

Although the sex-offender-registration statute does not expressly require 

proof of a mental state for prosecution of a failure to register, the indictment in 

this case alleged that Ostrander “intentionally or knowingly” failed to register. 

See Tex. Code Crim. Proc. Ann. art. 62.102(a); Tex. Penal Code Ann. § 6.02(b)–

(c) (West 2011). Therefore, we must review the record to determine if the State 
6

presented sufficient evidence of Ostrander’s knowing or intentional failure. See 

Harris v. State, 364 S.W.3d 328, 335 (Tex. App.—Houston [1st Dist.] 2012, no 

pet.). Proof of a culpable mental state almost always depends upon inferences 

found from circumstantial evidence, and this case is no different. See Lane v. 

State, 763 S.W.2d 785, 787 (Tex. Crim. App. 1989); Varnes v. State, 63 S.W.3d 

824, 833 (Tex. App.—Houston [14th Dist.] 2001, no pet.).

Here, Ostrander had an appointment to register, which Caruso reminded 

him of verbally and in writing seven days before the appointment. Ostrander left 

the center without permission four days before the appointment and did not 

register on August 18 as scheduled. Caruso’s actions that Ostrander claims kept 

him from registering occurred before Ostrander left the center and before Caruso 

reminded him of the registration appointment. Caruso’s alleged obstreperous 

actions did not interfere with or prevent Ostrander’s appearance at the 

department to register. The facts show that Ostrander knew he had an 

appointment to register but left the center without his ankle monitor and did not 

appear for his appointment four days later. This evidence would allow a rational 

fact-finder to conclude Ostrander knowingly or intentionally failed to register as a 

sex offender as required by article 62.102(a). See, e.g., Harris, 364 S.W.3d at 

335–36; Grant v. State, 154 S.W.3d 684, 686–87 (Tex. App.—Houston [14th 

Dist.] 2004, pet. ref’d); Varnes, 63 S.W.3d at 833. We must defer to this 

determination. See Harris, 364 S.W.3d at 336. Because the evidence was 

sufficient to support the fact-finder’s determination of guilt, his due-process rights 
7

were not violated by a lack of evidence. See, e.g., Sennett v. State, No. 11-11-

00089-CR, 2013 WL 1786025, at *3 (Tex. App.—Eastland Apr. 25, 2013, no 

pet.). We overrule points one and two.

B. JURY ARGUMENT

In his third and fourth points, Ostrander argues that the trial court erred by 

denying his objections to two of the State’s jury arguments during the punishment 

phase of the trial. To be permissible, the State’s jury argument must fall within 

one of the following four general areas: (1) summation of the evidence; 

(2) reasonable deduction from the evidence; (3) answer to argument of opposing 

counsel; or (4) plea for law enforcement. Felder v. State, 848 S.W.2d 85, 94–95 

(Tex. Crim. App. 1992), cert. denied, 510 U.S. 829 (1993); Alejandro v. State, 

493 S.W.2d 230, 231 (Tex. Crim. App. 1973). If a jury argument exceeds the 

bounds of proper argument, a trial court’s erroneous overruling of a defendant’s 

objection is not reversible error unless it affected the appellant’s substantial 

rights. Tex. R. App. P. 44.2(b); Martinez v. State, 17 S.W.3d 677, 692–93 (Tex. 

Crim. App. 2000).

Ostrander asserts that the State improperly brought up his “alleged cutting

off of a monitor”:

[The State]: Let’s talk a bit about intentionally or knowingly. During 

jury selection I described to you folks intentionally is on purpose. I 

meant to do it. It wasn’t an accident. Okay? Intent can be formed in 

an instant. Premeditation is not required for any crime in Texas, not 

for speeding, not up to capital murder. Intent can be formed like this 

(indicating). So can regret. 

 
8

[Defense Counsel]: You[r] Honor, I’m going to object to any 

reference to cutting off a monitor. I don’t think there was anybody 

that testified about seeing him cut off a monitor.

THE COURT: I’ll overrule the objection.

This argument does not refer to the ankle monitor in any apparent way.

Ostrander does not expound on how this argument impermissibly referred to his 

ankle monitor but merely states that the argument was “highly prejudicial” and 

“improper.”7

 Further, this argument was a reasonable deduction from the 

evidence that Ostrander left the center without permission and without his ankle 

monitor. The trial court did not err, and we overrule point three.

The second jury argument Ostrander complains was erroneous is the 

State’s reference to the underlying facts of the 1986 sexual assault: 

[The State]: Folks, we’re actually not permitted to consider the 

circumstances of that original sex assault. He pled guilty to it. He 

did time for it in prison. It’s adjudicated and it’s finished. But if it’s 

really important to you what it is - - and there’s two types of sexual 

assaults of children under 17. One is statutory. People are the 

wrong age and have consensual sex. The other one is

nonconsensual. And I urge you to look at [State’s Exhibit 4]. 

Because next to where it says 15-year-old female, there’s a box and 

it says who is this person in relation to you. Is it a friend?

[Defense Counsel]: Your Honor, objection. Outside the 

record what she just said something about.

. . . .

 7

We could assume that when the record states “(indicating),” the State 

made a cutting gesture, but we cannot add this information to the record on our 

own supposition. See Parker v. State, 626 S.W.2d 738, 741 (Tex. Crim. App. 

1982) (op. on reh’g) (stating factual assumption improper because appellate 

court bound by the record).
9

THE COURT: I’ll overrule the objection.

This argument was permissible as a response to Ostrander’s counsel’s 

earlier argument that “it is true . . . Ostrander went to prison at 18 years old for 

having sex with a 15-year-old girl . . . . I want you to think about that, because he 

could be your brother, your son, your relative.” Additionally, the argument was a 

summation of evidence that was admitted at trial, namely State’s Exhibit 4. The 

trial court did not err, and we overrule point four.

C. HEARSAY

In his final point, Ostrander asserts that the trial court erred by overruling 

his hearsay objection to the admission of the center’s logs and a letter the 

center’s case-management supervisor, Jeannie Parsons, sent to the department 

informing it that Ostrander left the center on August 14. At trial, Parsons testified 

that she did not have personal knowledge of Ostrander’s leaving the center, but

the logs were part of the center’s records kept in the normal course of its 

business. Because the logs were kept in the center’s regular course of business, 

they were admissible under an exception to the hearsay rule. See Tex. R. Evid. 

803(6); Canseco v. State, 199 S.W.3d 437, 439–40 (Tex. App.—Houston [1st 

Dist.] 2006, pet. ref’d). Likewise, Parson’s knowledge of Ostrander’s absence 

from the center was derived from her review of these business records, and she 

wrote the letter at or near the time Ostrander left; thus, the letter qualified as an 

admissible business record. See Tex. R. Evid. 803(6); Infante v. State, No. 01-
10

11-00905-CR, 2012 WL 6754834, at *4 (Tex. App.—Houston [1st Dist.] Dec. 28, 

2012, no pet.). The trial court did not err in allowing this information to be 

admitted, and we overrule point five.

III. CONCLUSION

We have overruled Ostrander’s points; however, we must modify the 

judgment to reflect that Ostrander pleaded not true to the habitual-offender notice 

as we discussed above in footnote 6. See Rhoten v. State, 299 S.W.3d 349, 356 

(Tex. App.—Texarkana 2009, no pet.) (recognizing appellate court’s duty to sua 

sponte modify judgment to show defendant pleaded not guilty when judgment 

erroneously noted defendant pleaded guilty). As modified, we affirm the trial 

court’s judgment.

LEE GABRIEL

JUSTICE

PANEL: GARDNER, WALKER, and GABRIEL, JJ.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: June 20, 2013