Herron, Larry Leonard v. State

Affirmed and Memorandum Opinion filed May 27, 2004 Affirmed and Memorandum Opinion filed May 27, 2004. In The Fourteenth Court of Appeals ____________ NO. 14-03-00196-CR ____________ LARRY LEONARD HERRON, Appellant V. THE STATE OF TEXAS, Appellee ___________________________________________________ On Appeal from the 351st District Court Harris County, Texas Trial Court Cause No. 916,850 ___________________________________________________ M E M O R A N D U M   O P I N I O N Appellant Larry Leonard Herron pleaded no contest to the felony offense of failure to comply with sex offender registration requirements. Pursuant to a plea agreement, the trial court found appellant guilty and sentenced him to six years= confinement. On appeal, appellant contends: (1) the registration requirement for a person convicted of sexual assault before the adoption of the Sex Offender Registration Program (ASORP@) violates the Double Jeopardy Clause of the Fifth Amendment; and (2) the SORP is unconstitutional as applied to appellant as an ex post facto law in violation of Article I, Section 9 of the United States Constitution.[1] I. Factual Background After pleading guilty, appellant was convicted of aggravated sexual assault of a child on October 20, 1987, and sentenced to twelve years= confinement. Appellant was either incarcerated or under court supervision in 1997, when the SORP was amended. In the 1997 amendment, the class of offenders required to register was expanded to include individuals with a reportable conviction[2] occurring on or after September 1, 1970, that were either confined in a penal institution, or were under the supervision and control of a juvenile probation office, a community supervision and corrections department, or the pardons and paroles division of the Texas Department of Criminal Justice on or after September 1, 1997.[3] In accordance with the sex offender registration laws, appellant originally registered with the Houston Police Department on October 25, 2001, listing his residence at a Texas Department of Corrections half-way house. Appellant left the half-way house for an unknown location on February 25, 2002, and a parole violation warrant was issued for his arrest. Appellant was indicted for intentionally failing to register under the SORP on or about July 1, 2002. In a hearing on February 12, 2003, the trial court found appellant guilty and sentenced appellant to six years= confinement as agreed by the parties. Although the plea agreement specifically stated that appellant waived his right to appeal, the trial court signed a certification of defendant=s right to appeal and stated on the record that the court would allow an appeal of the conviction for failing to register. II. Discussion In his second and third issues, appellant contends that requiring him to register as a sex offender for a crime committed before the adoption of the SORP is unconstitutional because it violates the Double Jeopardy Clause and is an ex post facto law as applied to him.[4] A. Appellant=s Ex Post Facto Claim Enforcement of the sex offender registration requirements enacted through the SORP after appellant committed his sexual assault does not violate appellant=s constitutional rights. The Texas Constitution provides that: ANo . . . ex post facto law, retroactive law, or any law impairing the obligation of contracts, shall be made.@ Tex. Const. art. I, ' 16. An ex post facto law is one that: (1) punishes as a crime conduct previously committed, which was innocent when done; (2) makes more burdensome the punishment of a crime after its commission; (3) deprives one charged with a crime of any defense available at the time when the act was committed; or (4) alters the legal rules of evidence, and receives less or different testimony, than the law required at the time of the commission of the offense in order to convict the offender. Carmell v. Texas, 529 U.S. 513, 522B25, 120 S. Ct. 1620, 1627B29, 146 L. Ed. 2d 577 (2000); Collins v. Youngblood, 497 U.S. 37, 42, 110 S. Ct. 2715, 2719, 111 L. Ed. 2d 30 (1990); Ex Parte Davis, 947 S.W.2d 216, 219B20 (Tex. Crim. App. 1996); Dean v. State, 60 S.W.3d 217, 219B20 (Tex. App.CHouston [14th Dist.] 2001, pet. ref=d). Legislatures cannot retroactively alter the definition of crimes or increase the punishment for criminal acts. Collins, 497 U.S. at 43. Appellant argues the SORP is unconstitutional as applied to him because it imposes an additional punitive measure, the requirement to register for life, to an offense committed well before the SORP was enacted. The SORP effectively violates ex post facto prohibitions in the United States Constitution if the following two questions are answered affirmatively: (1) Do they apply retrospectively to appellant?; and (2) Do they constitute punishment? See Dean, 60 S.W.3d at 220. Clearly the SORP was applied retrospectively; therefore, the determinative issue is whether the SORP and its amendments are punitive in nature or merely regulatory. Id. This court conducted a thorough analysis of the SORP in Dean and determined that the registration requirement was intended to be remedial in nature and not punitive. See id. at 221B22. Because the SORP was enacted for the advancement of the public welfare, it does not impose punishment for constitutional purposes and is not susceptible to an ex post facto claim. Id. at 225; Rodriguez v. State, 45 S.W.3d 685, 689 (Tex. App.CFort Worth 2001), aff=d, 93 S.W.3d 60 (Tex. Crim. App. 2002);[5] Saldana v. State, 33 S.W.3d 70, 71B72 (Tex. App.CCorpus Christi 2000, pet. ref=d). Accordingly, we find no merit in appellant=s ex post facto argument. B. Appellant=s Double Jeopardy Claim The Fifth Amendment guarantee against double jeopardy protects against (1) a second prosecution for the same offense following conviction; (2) a second prosecution for the same offense following acquittal; and (3) multiple punishments for the same offense. Illinois v. Vitale, 447 U.S. 410, 415, 100 S. Ct. 2260, 2264, 65 L. Ed. 2d 228 (1980); Cervantes v. State, 815 S.W.2d 569, 572 (Tex. Crim. App. 1991). The double jeopardy guarantee against multiple punishments for the same offense does no more than prevent greater punishment than the legislature intended. Missouri v. Hunter, 459 U.S. 359, 366, 103 S. Ct. 673, 678, 74 L. Ed. 2d 535 (1983); Ex Parte Kopecky, 821 S.W.2d 957, 959 (Tex. Crim. App. 1992). However, because we have held that sex offender registration in Texas is not punishment, in keeping with our opinion in Dean and Texas Court of Criminal Appeals precedent, appellant=s double jeopardy claim is without merit. See Ex Parte Robinson, 80 S.W.3d 709, 715 (Tex. App.CHouston [1st Dist.] 2002) (stating the provisions of the SORP do not constitute punishment), aff=d, 116 S.W.3d 794, 798 (Tex. Crim. App. 2003).[6] Accordingly, appellant=s second and third issues are overruled. The judgment of the trial court is affirmed. /s/ Eva M. Guzman Justice Judgment rendered and Memorandum Opinion filed May 27, 2004. Panel consists of Chief Justice Hedges, and Justices Frost and Guzman. Do Not Publish C Tex. R. App. P. 47.2(b). [1] Appellant also contends he is entitled to appeal the trial court=s judgment because the trial judge specifically stated on the record that he would have the right to appeal and also signed a ATrial Court=s Certification of Defendant=s Right to Appeal@ granting him this right. Although these two actions by the trial judge conflict with the judgment signed on the same date, we findCand the State concedesCthat appellant has the right to appeal. This is consistent with the Court of Criminal Appeals= recent holdings. See Willis v. State, 121 S.W.3d 400, 403 (Tex. Crim. App. 2003) (holding a trial court=s handwritten permission to appeal controls over defendant=s previous waiver of the right to appeal); Monreal v. State, 99 S.W.3d 615, 622 (Tex. Crim. App. 2003) (reaffirming that absent consent from trial court, valid waiver of appeal will prevent defendant from maintaining appeal). [2] Aggravated sexual assault of a child is one of the reportable convictions. See Tex. Code Crim. Proc. Ann. art. 62.01(5)(A) (Vernon Supp. 2004). [3] Act of June 13, 1997, 75th Leg., R.S., ch. 668, ' 11, 1997 Tex. Gen. Laws 2253, 2264; see also Rodriguez v. State, 45 S.W.3d 685, 689 (Tex. App.CFort Worth 2001), aff=d, 93 S.W.3d 60 (Tex. Crim. App. 2002). [4] The State claims that appellant waived these claims by failing to object at the trial court level. However, appellant=s broad exception at trial alludes to both a double jeopardy and ex post facto claim. Appellant stated: At this time I would like to object to the State prosecuting Mr. Herron for failure to comply with registration as a sex offender for the following reasons: First of all, when Mr. Herron originally pled guilty to the offense of . . . aggravated sexual assault of a child, he was never informed that he would ever have to be required to register. And since he was unaware of that requirement, it=s additional punishment that he should be required to register and his plea was involuntary. . . . Regardless, because we do not find any merit in appellant=s constitutional claims, we assume without deciding, that appellant did not waive his complaints at the trial court level. [5] Appellant argues that the Rodriguez case was wrongly decided and should be reexamined in light of the United States Supreme Court=s decision in Smith v. Doe, 538 U.S. 84 (2003). In Ex Parte Robinson, decided seven months after Smith, the Court of Criminal Appeals reaffirmed its Rodriquez opinion and held the SORP is non-punitive in intent and effect. Ex Parte Robinson, 116 S.W.3d 794, 797B98 (Tex. Crim. App. 2003). [6] In Ex Parte Robinson, appellant argued that the SORP amounted to cruel and unusual punishment. 80 S.W.3d at 712. The Court of Criminal Appeals affirmed the First Court of Appeals=s holding that the purpose of the SORP was non-punitive; therefore, with no punishment, there could be no cruel and unusual punishment. Robinson, 116 S.W.3d at 797B98.