## I N T H E C O U R T O F C R I M I N A L A P P E A L S O F T E X A S

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L E O D E M O R Y R O B I N S O N , A p p e l l a n t

v .
T H E S T A T E O F T E X A S

O N A P P E L L A N T ’ S P E T I T I O N F O R D I S C R E T I O N A R Y R E V I E W

F R O M T H E F I F T H C O U R T O F A P P E A L S

D A L L A S C O U N T Y

K E L L E R , P
. J
. , f

i l e d a c o n c u r r i n g o p i n i o n i n w h i c h H E R V E Y , Y E A R Y a n d N E W E L L , J J
. , j o i n e d
.
I join the Court’s opinio n , b u t I write separ ately to comment on appellant’ s claim that the

authorities rebuf

fed his attempts to reg ister and to respond to J udg e Alcala ’s conce rns rela ting to that

claim. I f authorities re buff a sex-offende r’s re peate d attempts to reg ister, the sex offende r may be

able to claim an exemption from or defe nse t o criminal l iabili t y o n the basis that his failure to act

was involuntary

. The Penal Code provides that an omission that g ives rise to criminal liability mustROBINSON CONCURRENCE — 2

be voluntary

. Due proce ss may also require that t h e authorities not place signific ant hurdles to

1
comply ing w ith a duty

to reg ister bey ond those contemplate d by the statute. 2

J udg e Alcala believes that apply ing a culpable mental state to a sex-offende r’s omissions

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

in v o l u n t ar y , but it would not. “A person acts knowing ly , or with knowledg e, with respe ct to the

nature of his conduct or to circ umstances surrounding his conduct when he is awa re of the nature of

his conduct or that the circ umstances exis t.” Even if a failure to comply with the reg istration statute 3

i s i n v o l u n t ary , the sex-offende r who is rebuf fed by public officia ls still knows that he is in fac t failing to comply . The solution is not t o impose a culpable mental s tate where it does not belong , but to rec og nize, in an appropriate case , that the vol unt ar y -o mission require ment and due proce ss

are the mecha

nisms to addre ss any stonewalling by public officia ls that preve nts a sex-offende r from

T E X

. P E N A L C O D E § 6.01(a) (“A person commits an offe nse only if he voluntarily eng ag es 1 in conduct, including an act, an omission, or possession.”). See also Ramirez-M emije v. State , 444 S.W .3d 624, 6 2 7 -2 8 (T ex

. C ri m. App. 2014). I need not addre ss what would make an omission involuntary , but I note that, in the “ac t” and “possession” contexts, voluntariness is a very minimal require ment. See Farmer v. State , 411 S.W .3d 901 (Tex. Crim. App. 20 1 3 ) (v o l u n t ary act of swallowing pill though mistaken about what pill was being swallo we d ); Ramirez-M emije , 444 S.W .3d at 627-28 (voluntar y possession of skimming device without knowing its contents).
See Harrah I.S.D. v. Martin , 4 4 0 U. S

. 1 9 4, 198 (1979) (school district did not act 2 arbitra rily when it g ave teac hers aff ecte d by chang e in rule the opportunity to bring themselves into compl i an ce) ; Balough v. Fairbanks N. Star Borough , 995 P.2d 245, 263 (Alaska 2000) (junky ard opera tor “did not rec eive all the proce ss to which she was due” when she was g iven no opportunity to rem ed y d ef

i ciencies in noncompliance afte r rezoning and afte r the overturning of zoning administrator’s ruling in her favor)

. Due process may also be v i o l at ed if a st atute makes it near ly impossibl e to comply with its provisions, but such is not the case with t h e T ex as sex-offende r reg istration scheme.

T E X

. P E N A L C O D E § 6.03(b). 3ROBINSON CONCURRENCE — 3

comply ing w ith reg istration require ments.
Filed: Jul y

1, 2015 Publis h