IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-0421-14

LEO DEMORY ROBINSON, Appellant

v.

THE STATE OF TEXAS

ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

FROM THE FIFTH COURT OF APPEALS

DALLAS COUNTY

KELLER, P.J., filed a concurring opinion in which HERVEY, YEARY and

NEWELL, JJ., joined.

I join the Court’s opinion, but I write separately to comment on appellant’s claim that the

authorities rebuffed his attempts to register and to respond to Judge Alcala’s concerns relating to that

claim. If authorities rebuff a sex-offender’s repeated attempts to register, the sex offender may be

able to claim an exemption from or defense to criminal liability on the basis that his failure to act

was involuntary. The Penal Code provides that an omission that gives rise to criminal liability must
ROBINSON CONCURRENCE — 2

be voluntary. Due process may also require that the authorities not place significant hurdles to 1

complying with a duty to register beyond those contemplated by the statute.2

Judge Alcala believes that applying a culpable mental state to a sex-offender’s omissions

would somehow eliminate the possibility of individuals being punished for omissions that are truly

involuntary, but it would not. “A person acts knowingly, or with knowledge, with respect to the

nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of

his conduct or that the circumstances exist.” Even if a failure to comply with the registration statute 3

is involuntary, the sex-offender who is rebuffed by public officials still knows that he is in fact

failing to comply. The solution is not to impose a culpable mental state where it does not belong,

but to recognize, in an appropriate case, that the voluntary-omission requirement and due process

are the mechanisms to address anystonewalling by public officials that prevents a sex-offender from

TEX. PENAL CODE § 6.01(a) (“A person commits an offense only if he voluntarily engages 1

in conduct, including an act, an omission, or possession.”). See also Ramirez-Memije v. State, 444

S.W.3d 624, 627-28 (Tex. Crim. App. 2014). I need not address what would make an omission

involuntary, but I note that, in the “act” and “possession” contexts, voluntariness is a very minimal

requirement. See Farmer v. State, 411 S.W.3d 901 (Tex. Crim. App. 2013) (voluntary act of

swallowing pill though mistaken about what pill was being swallowed); Ramirez-Memije, 444

S.W.3d at 627-28 (voluntary possession of skimming device without knowing its contents).

See Harrah I.S.D. v. Martin, 440 U.S. 194, 198 (1979) (school district did not act 2

arbitrarily when it gave teachers affected by change in rule the opportunity to bring themselves into

compliance); Balough v. Fairbanks N. Star Borough, 995 P.2d 245, 263 (Alaska 2000) (junkyard

operator “did not receive all the process to which she was due” when she was given no opportunity

to remedy deficiencies in noncompliance after rezoning and after the overturning of zoning

administrator’s ruling in her favor). Due process may also be violated if a statute makes it nearly

impossible to comply with its provisions, but such is not the case with the Texas sex-offender

registration scheme.

 TEX. PENAL CODE § 6.03(b). 3
ROBINSON CONCURRENCE — 3

complying with registration requirements.

Filed: July 1, 2015

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