NO. 06-15-00094-CR

IN THE COURT OF APPEALS

SIXTH APPELLATE DISTRICT OF TEXAS

AT TEXARKANA, TEXAS

ALBERT DOTIE, JR., 

Appellant

VS. 

THE STATE OF TEXAS, 

Appellee

Appealed from the 276th Judicial District Court

Marion County, Texas

Trial Court Cause No. F14540

BRIEF OF APPELLANT

 Submitted by: 

 James P. Finstrom 

Counsel for Appellant

 P.O. Box 276

Jefferson, Texas 75657

 903-665-7111

 Fax: 903-665-7167

 State Bar #07038000

APPELLANT DOES REQUEST ORAL ARGUMENT

ACCEPTED

06-15-00094-CR

SIXTH COURT OF APPEALS

TEXARKANA, TEXAS

7/27/2015 2:20:06 PM

DEBBIE AUTREY

CLERK

 FILED IN 6th COURT OF APPEALS TEXARKANA, TEXAS 7/27/2015 2:46:00 PM DEBBIE AUTREY Clerk
2

IDENTITY OF PARTIES AND COUNSEL

Pursuant to T.R.A.P. 38.1(a)

Appellant: Albert Dotie, Jr.

Institutional Division of Texas Department 

of Criminal Justice

Joe F. Gurney Unit

1835 FM 3328 

Tennessee Colony, Texas 75803

Appellant’s Counsel for Appellant at trial and on appeal: 

Hon. James P. Finstrom 

P.O. Box 276

Jefferson, Texas 75657

State’s Counsel at trial and on appeal: 

Hon. Angela Smoak, County Attorney

102 West Austin Street

Jefferson, Texas 75657 

Trial Judge: 

Hon. Robert Rolston, Judge, 

276th Judicial District Court

Marion County, Texas 
3

TABLE OF CONTENTS

Pursuant to T.R.A.P. 38.1(b) 

 Page

IDENTITY OF PARTIES AND COUNSEL 2

TABLE OF CONTENTS 3

INDEX OF AUTHORITIES 4

STATEMENT OF THE CASE 5

ISSUE PRESENTED 5

STATEMENT OF FACTS 5 

ISSUE NO. 1: IS THE EVIDENCE SUFFICIENT TO SUSTAIN 

THE APPELLANT’S CONVICTION?

ISSUE NO. ONE (Restated) 9

IS THE EVIDENCE SUFFICIENT TO SUSTAIN APPELLANT’S 

CONVICTION?

SUMMARY OF THE ARGUMENT 9

ARGUMENT (Issue No. 1) 11

PRAYER 14

CERTIFICATE OF SERVICE 15

CERTIFICATE OF COMPLIANCE 15
4

INDEX OF AUTHORITIES

Pursuant to T.R.A.P. 38.1(c)

Cases: Page

Green v. State, 350 S.W.3d 617 12

(Tex.App. – Houston 14th Dist. 2012, p.d.r. ref.)

Martin v. State, 252 S.W.3d 803 12

(Tex.App. – Texarkana 2008, no pet.)

Mills v. Bartlett, 377 S.W.2d 636 (Tex. 1964) 11

Rios v. State, 141 SW3d 750 11

(Tex. App.—Corpus Christi 2004, p.d.r. ref.)

Silber v. State, 371 S.W.3d 605, 613 11

(Tex.App.—Houston 1st Dist. 2012, no pet.)

Simpkins v State, 300 S.W.3d 860, 12

(Tex.App.—Texarkana 2009, no pet.) 

Whitney, 472 S.W.2d 524 (Tex.Crim.App. 1971) 11

Statutes: 

Article 62.051(a), Code of Criminal Procedure 12

Article 62.102, Code of Criminal Procedure 11

All references to Texas statutes, rules, etc. are to the latest 

edition published by West Publishing Company, unless otherwise 

noted. 
5

STATEMENT OF THE CASE

Pursuant to T.R.A.P. 38.1(d)

Appellant was tried by a jury on May 4, 2015, on his plea of not 

guilty to an indictment alleging the third degree felony offense of 

failure to timely register a change of address as a sex offender 

alleged to have occurred on or about December 21, 2013. (CR 4, 7) 

The jury found him guilty and assessed a four (4) year sentence in 

the Institutional Division of the Texas Department of Criminal Justice

on May 5, 2015. (CR 27-28) Appellant gave timely notice of appeal 

on June 2, 2015. (CR 32) Counsel was appointed to represent 

Appellant on January 14, 2014, which appointment has continued 

through this appeal. (RR 5-6)

ISSUES PRESENTED

Pursuant to T.R.A.P. 38.1(e)

ISSUE NO 1: IS THE EVIDENCE SUFFICIENT TO SUSTAIN 

APPELLANT’S CONVICTION?

STATEMENT OF FACTS

Pursuant to T.R.A.P. 38.1(f)

The State called four witnesses and the Defendant testified and 

called one other witness. 

Deronda Riley, the administrative assistant court clerk and, as 

such, the sex offender registrar for the City of Jefferson, testified that 
6

Appellant had a reportable conviction for indecency with a child and 

had been reporting to her as a resident of Jefferson, Texas, for at 

least fourteen years. (RR 12-14) At the time of this case, Appellant 

was reporting to Ms. Riley annually. (RR 15) Ms. Riley met with 

Appellant on December 10, 2013, when he reported a change of 

primary address to 408 Saint John, Jefferson, Texas, and a 

supplemental address of 305 West Watson, Jefferson, Texas. (RR 

14-15) On December 22, 2013, she received information that 

Appellant had used the address of 1406 FM 2208, Jefferson, Texas,

but did not remember Appellant reporting that address to her seven 

days prior to using it and did not remember if he had any explanation. 

(RR 16-21) Appellant returned to her office on January 8, 2014 and 

again on January 10, 2014, when he reported a new change of 

address to her. (RR 17) She believed that Appellant had moved less 

than seven days before he reported his change of address and 

violated his registration requirements and she reported this to Deputy 

Quada at the Marion County Sheriff’s Department. (RR 17) Ms. 

Riley did not remember if Appellant offered her any explanation for 

the change of address to 1406 FM 2208. (RR 21) And she did not 

know if any officer had gone to 305 West Watson or 408 Saint John 
7

to see whether or not Appellant had moved. (RR 21) When 

Appellant returned to Ms. Riley’s office on January 13, 2014, he was 

arrested for the offense alleged in this case. (RR 24)

Deputy Marion County Sheriff David Quada testified that he 

received a telephone call from Appellant on January 3, 2014, to 

report a change of address outside the city limits of Jefferson and he 

told Defendant to report the change first to Deronda Riley within ten 

days. (RR 42, 45-46) He did not ever verify the change of address 

by going to the new address or the old address but believed that a 

Deputy Riehl had. (RR 48-49) However, Deputy Riehl never 

testified. 

Paula Bradshaw, who was Appellant’s girl friend’s mother, 

testified that she did not see Appellant after he moved from her house 

at 808 Canal Street until January 30, 2014, and she did not know 

where he was living. (RR 51) She did not know for certain where he 

lived and did not know that he had reported a change of address to 

305 W. Watson on December 10, 2013. (RR 55)

Joyce Guess, rented a mobile home to Jennifer Smith, who was 

Appellant’s girlfriend, on December 18, 2013. (RR 58-59, State’s 

Exhibit 3). Appellant signed the lease later a few days after Jennifer 
8

Smith signed it. (RR 59) She had a conversation with Appellant 

when he told her that he was a sex offender and had a duty to 

register a change of address if he moved. (RR 63-64) Guess never 

actually confirmed that Appellant was living there at her mobile home 

and she never saw him very often. (RR 65-66, 68)

Appellant’s employer, Charles McCoy, testified that he was 

picking Appellant up from his home when Appellant was arrested in 

January, 2014, and that he may have picked him up at the address 

on FM 2208 twice prior to his arrest in this case. (RR 73-74) The 

rest of the time, McCoy picked Appellant up at the bar-b-que place 

downtown and assumed he was living near there. (RR 74-75) 

Appellant testified that the bar-b-que place was about 50 feet from his 

residence. (RR 82-83) 

Appellant testified that he and Jennifer Smith went to 

Shreveport to his brother’s funeral and he was arrested there on 

December 18, 2013, after his brother’s funeral. (RR 81) At the jail in 

Shreveport, he was putting his address on the jail records and told 

the officer he was moving to another place, but had not moved yet 

and the officer told him to use the new address where he was going 

to be living so that they could get in contact with him. (RR 81-82) He 
9

further testified that until he moved, he would be living near the bar-bque place. (RR 82) At the time he got arrested in this case, he had 

spent about three separate nights with Jennifer at the address on FM 

2208. (RR 84-85) Appellant testified that he went to report the 

change of address to the FM 2208 address before he moved and was 

told he would have to come back later. (RR 88-90) He got arrested 

when he came back to change his address and said that he did not 

move into the FM 2208 address until he got out of jail and after he 

reported the change of address. (RR 91-92, 108) He also testified 

that he had tried to report the change of address earlier but was told 

that he had to get papers from Deronda Riley, and that there was no 

reason he would not have reported the change of address before he 

moved in. (RR 108)

ISSUE NO. ONE

(Restated)

IS THE EVIDENCE SUFFICIENT TO SUSTAIN APPELLANT’S

CONVICTION?

SUMMARY OF THE ARGUMENT

 Pursuant to T.R.A.P. 38.1(g) 

Appellant had been timely reporting changes of address for at 

least fourteen years before this case allegedly occurred and 
10

recounted many of these changes to the jury. (RR 18-21, 79-80) He 

testified that he did not move in this case before he changed his 

registration and that any nights he stayed away from his residence 

were temporary and less than seven days. (RR 84-85) His 

employer, who picked him up to go to work, confirmed this. (RR 72-

77) The State relied upon an address given by Appellant when he 

was placed in jail in Lousiana but wholly failed to rebut Appellant’s 

testimony that they wanted a good mailing address rather than his 

actual address if he was going to move to the new address in the 

near future. (RR 81-82) All of the State’s evidence is equivocal and 

no witness ever went to Defendant’s registered address to verify that 

he had moved from it or to his new address to verify when he in fact 

moved in there and stayed for more than seven days. Appellant was 

trying to register his new change of address when he was arrested. 

(RR 91-92, 10-8) Careful analysis of the testimony shows that the 

evidence is insufficient to sustain Appellant’s conviction because it 

does not rebut his testimony that he tried to report his change of 

address as required before he moved and was told to go to see 

Deronda Riley first and that he actually had reported his change of 

address before he moved. 
11

ARGUMENT

Pursuant to T.R.A.P. 38.1(h)

Issue No. 1

In Silber v. State, 371 S.W.3d 605, 613 (Tex.App.—Houston 1st

Dist. 2012), the court held that “a registered sex offender is not 

required to spend every spare moment and every night at their 

registered address. See Whitney, 472 S.W.2d 524 at 525

(Tex.Crim.App. 1971), where the Court of Criminal Appeals held that 

residence is an elastic term and the meaning that must be given to it 

depends upon the circumstances surrounding the person involved 

and largely depends upon the present intention of the individual. 

And, see Mills v. Bartlett, 377 S.W.2d 636 (Tex. 1964), which held 

that neither bodily presence alone nor intention alone will suffice to 

create the residence, but when the two coincide, at that moment the 

residence is fixed and determined. In Mills, as in the case at bar, the 

evidence is not clear that Appellant made the FM 2208 address his 

residence less than seven days before he was arrested.

There must be a determination based on the particular facts 

and circumstances of the case that Appellant failed to register within 

the requirements of Art. 62.102, Code of Criminal Procedure. As in 

Rios v. State, 141 SW3d 750 (Tex. App.—Corpus Christi 2004), there 
12

was conflicting testimony as to where the defendant was living and 

his actual residence was not verified if it was different from his 

registered address, and thus the evidence was insufficient to sustain 

the conviction in that case. And, as in Green v. State, 350 S.W.3d 

617 at 630-635 (Tex.App. – Houston 14th Dist. 2012), the court made 

a careful analysis of the evidence as to an address change found that 

no rational fact finder could have found beyond a reasonable doubt 

that appellant ever had an intent to change his address that he failed 

to report not later than the seventh day before the date of the 

intended address change. See also Simpkins v State, 300 S.W.3d 

860, 862-65 (Tex.App.—Texarkana 2009, no pet.) and Martin v. 

State, 252 S.W.3d 750, 753-54 (Tex.App. – Texarkana 2008, no pet.)

In Simpkins, at page 862, this Court noted that Article 

62.051(a), of the Texas Code of Criminal Procedure defines the 

location of registration:

A person who has a reportable conviction or adjudication or who is 

required to register as a condition of parole, release to mandatory 

supervision, or community supervision shall register or, if the person 

is a person for whom registration is completed under this chapter, 

verify registration as provided by Subsection (f), with the local law 

enforcement authority in any municipality where the person resides or 

intends to reside for more than seven days. If the person does not 

reside in a municipality, the person shall register or verify registration 

in any county where the person resides or intends to reside for more 

than seven days. 
13

Appellant had been living in the municipality of Jefferson, Texas, but 

intended to move to an address outside the city but in Marion County. 

He went to the deputy sheriff who handled registration in the county 

and was told that he had to first report the change to Deronda Riley at 

the city police department. He went to Deronda Riley who was out 

when he called there and he was told to return later. He did return 

later to register the new address and was arrested, although he 

testified that he had not moved into the new address yet at that time. 

This testimony was not rebutted by anyone who checked to see that 

he had moved out from his old address or had in fact moved into his 

new address. The burden of proof is on the State and never switches 

to the Appellant, as is required by the court’s charge to the jury in this 

case. (RR 18) No witness for the State was able to testify 

unequivocally that Appellant was not staying at the residence for 

which he was registered or that he had been staying at the new 

address for more than seven days or that it was more than a mailing 

address for him. No city police officer or sheriff’s deputy or civilian 

witness could testify of their own personal knowledge or as a result of 

their own personal investigation that Appellant violated the statutory 

registration requirements. Appellant’s testimony that he had not yet 
14

moved as of date of his arrest in this case was simply not rebutted so 

as to sustain the jury’s verdict. His conviction must be reversed and 

judgment of acquittal entered. 

PRAYER

Upon the issue presented, Appellant, Albert Dotie, Jr., prays 

that this Court reverse the judgment of the trial court and render a 

verdict of not guilty, and for such other and further relief to which he 

may be entitled. 

Respectfully submitted, 

_/s/James P. Finstrom____

James P. Finstrom 

Counsel for Appellant

202 S. Marshall, 

P.O. Box 276

Jefferson, Texas 75657

903-665-7111

Fax: 903-665-7167

Texas Bar #07038000
15

CERTIFICATE OF SERVICE

I certify that I have delivered a true copy of this brief to Hon.

Angela Smoak, counsel for the State, and to Appellant by United 

States mail, first class postage prepaid, at the Joe F. Gurney Unit, 

1385 FM 3328, Tennessee Colony, Texas 75803, on this 27th day of

July, 2015. 

__/s/James P. Finstrom___

James P. Finstrom 

CERTIFICATE OF COMPLIANCE

I certify that Appellant’s Brief filed electronically on this 27th day 

of July, 2015 complies with Tex. R. App. P. 9.4(i)(2)(B). This Brief 

contains 2,556 words.

/s/ James P. Finstrom

James P. Finstrom