Boswell v. State

Summary

This document is Mickey Boswell’s Petition for Discretionary Review filed in the Texas Court of Criminal Appeals. It challenges a consolidated decision of the Thirteenth Court of Appeals affirming convictions and revocations arising from failure-to-register, theft, and unauthorized-use-of-a-motor-vehicle cases. The petition raises issues involving juror misconduct and receipt of other evidence, waiver of an impartial jury, a mistake-of-law instruction, punishment for registration violations, and double jeopardy.

Holdings

1. A mistrial was not required because the jury sought guidance, received a proper instruction not to consider matters outside the evidence, and the record did not show that the jury was unable to follow that instruction. The curative instruction was an effective lesser remedy, so the information was treated as not received by the jury.
2. Boswell was not entitled to reversal based on juror misconduct because he did not show that the juror withheld material information in response to specific voir dire questions or that counsel exercised the required diligence.
3. The trial court properly refused to submit to the jury an issue concerning the applicability of the quarterly verification requirement because the 2001 amendments applied the requirement to persons required to register before, on, or after September 1, 2001, regardless of the date of Boswell's discharge.
4. Boswell was not entitled to a mistake-of-law instruction because he did not produce sufficient evidence that he reasonably believed his conduct was not criminal and acted in reasonable reliance on an official written statement or interpretation by an authorized agency or official.
5. Retroactive application of the quarterly sex-offender-registration requirement did not violate the state or federal Ex Post Facto Clause because the registration statute was nonpunitive in effect.
6. Boswell waived challenges to the original plea proceedings, deferred-adjudication judgments, evidentiary sufficiency, and sentencing enhancements by failing to timely appeal when deferred adjudication was imposed and by expressly waiving his right to appeal.
7. A double-jeopardy violation was not clearly apparent on the face of the record because theft and unauthorized use of a motor vehicle require different elements under the cognate-pleadings approach, and the indictments did not establish that the theft appropriation occurred through operation of the boat.
8. The record did not clearly establish a double-jeopardy violation because the three counts alleged separate statutory violations involving different reporting duties, and the Legislature authorized separate punishment for each violation.
9. The sentences were not improperly enhanced because the indecency conviction was an element of the prior failure-to-register conviction but was not an element of the theft or unauthorized-use offenses for which it was used as an enhancement.

Questions Presented

1. Whether the jury's receipt and discussion of a juror's personal information about Boswell's reported address required a mistrial or demonstrated denial of an impartial jury.
2. Whether the trial court erred by refusing to submit to the jury an issue concerning the applicability of the quarterly verification requirement.
3. Whether the trial court erred by refusing to submit a mistake-of-law affirmative-defense instruction.
4. Whether retroactive application of the quarterly sex-offender-registration requirement violated the state or federal Ex Post Facto Clause.
5. Whether challenges to the original guilty pleas, deferred-adjudication judgments, convictions, enhancements, and multiple punishments could be raised on appeal from the revocation proceedings.
6. Whether the record clearly established a double-jeopardy violation based on convictions for theft and unauthorized use of a motor vehicle.
7. Whether the record clearly established a double-jeopardy violation based on three sex-offender-registration convictions.
8. Whether Boswell's sentences were improperly enhanced by use of a prior conviction.

Disposition

affirmed