Ex Parte Micah Tutton ( 2015 )

IN THE
TENTH COURT OF APPEALS
No. 10-14-00360-CR
EX PARTE MICAH TUTTON
From the 40th District Court
Ellis County, Texas
Trial Court No. 34649CR
MEMORANDUM OPINION
In one issue, appellant, Micah Tutton, argues that the trial court abused its
discretion by denying his article 11.072 application for writ of habeas corpus based on a
finding that he was required to register as a sex offender as a result of his juvenile
adjudication in Johnson County, Texas. See TEX. CODE CRIM. PROC. ANN. art. 11.072 (West
Supp. 2014). We affirm.
I. BACKGROUND
On February 18, 2010, Tutton was indicted in Ellis County, Texas, for failing to
comply with the sex-offender registration requirements. See generally id. art. 62.102 (West
Supp. 2014). Pursuant to a plea bargain with the State, Tutton pleaded guilty to the
charged offense and received a 730-day jail term and a $1,000 fine. However, the trial
court suspended the prison sentence and placed Tutton on community supervision for a
period of five years including installment payments of any fines and court costs as
provided in the conditions of supervision. Orders modifying Tutton’s community
supervision were entered on September 13, 2010; May 11, 2011; and September 20, 2011.
On September 24, 2014, Tutton filed an article 11.072 application for writ of habeas
corpus, asserting that: (1) he is innocent of the offense; (2) he received ineffective
assistance of counsel at the time he entered into the plea bargain with the State; and (3)
his plea was not knowingly and voluntarily made. Tutton argued that he had no duty to
register as a sex offender because he completed a sex-offender treatment program, and
because any duty to register stemming from Johnson County had been deferred.1 In
support of his application, Tutton included an affidavit, wherein he stated the following:
I was charged with failure to register as a sex offender in Ellis County,
Texas. The court appointed Charles Slaton to represent me. I met with Mr.
Slaton twice, both times in court. He advised me that I did not stand a
chance in trial and that it would be in my interest to accept a probated
sentence. He never discussed any possible defenses. I told him that, in the
back of my mind, I did not believe I was required to register, but I did not
know exactly why and could not explain why. I knew I had completed the
required treatment and that the juvenile matters had been deferred. Mr.
Slaton, to my knowledge, did not follow up on the matter. Had I known
1 Regarding Tutton’s completion of the Pegasus sex-offender treatment program, the State argued
in the trial court and on appeal that this requirement pertained to Tutton’s conviction from Ellis County
Court at Law Number Two, sitting as a juvenile court. The State further argued that Tutton’s registration
requirement stemmed from his Johnson County conviction, which resulted in Tutton being sentenced to
the Texas Youth Commission (“TYC”) for an indeterminate period of time and a deferral of the registration
requirement until Tutton completed a TYC treatment program.
Ex parte Tutton Page 2
that I was not required to register, I would not have agreed to plead guilty,
but would have contested the matter.
Tutton did not proffer any other evidence at that time, nor did Tutton’s application refer
to any other documents, exhibits, or attachments.
The State responded that Tutton had failed to carry his burden to show that he
was not required to register as a sex offender and that Tutton was required to register at
the time of his plea. The trial court denied Tutton’s habeas-corpus application as
frivolous without a hearing and made several findings of fact, including:
The Court finds that Applicant failed to successfully complete the Texas
Youth Commission’s Sexual Behavior Treatment Program and is required
to register as a sex offender due to his adjudication from Johnson County.
The Court finds that the Johnson County order in Cause Number J04333
deferred the decision on requiring registration under Texas Code of
Criminal Procedure article 62.352(b)(1) until Applicant completed
treatment for his sexual offense as a condition of probation or while
committed to the Texas Youth Commission and did not defer “until further
order of the court.”
The Court finds that Applicant has failed to allege or prove any facts which,
if true, would entitle him to relief; that there are no unresolved facts to be
resolved; and that no hearing is necessary.
Shortly after the trial court’s denial of the application, Tutton filed a
“Supplemental Response and Unopposed Request for Rehearing” and filed additional
documents “that need to be filed with the 11.072 Application for Writ of Habeas
Corpus . . . .” Contrary to Tutton’s assertion, the State objected to Tutton’s request for a
rehearing and argued that the newly-filed documents did not change the State’s position
Ex parte Tutton Page 3
that Tutton was legally required to register as a sex offender. The trial court ultimately
denied Tutton’s rehearing request, and this appeal followed.
II. TUTTON’S HABEAS-CORPUS APPLICATION
In his sole issue on appeal, Tutton contends that the trial court abused its discretion
in denying his habeas-corpus application. Specifically, Tutton argues that he was not
required to register as a sex offender because the Texas Youth Commission, not Tutton,
was required by rule to register Tutton as a sex offender, and because the Texas Youth
Commission rule purportedly requiring it to register Tutton irreconcilably conflicts with
the Code of Criminal Procedure.
A. Standard of Review
We review a habeas court’s decision on an application for a writ of habeas corpus
under an abuse-of-discretion standard. Ex Parte Wheeler, 203 S.W.3d 317, 324 (Tex. Crim.
App. 2006). The applicant bears the burden of establishing by a preponderance of the
evidence that the facts entitle him to relief. Ex parte Thomas, 906 S.W.2d 22, 24 (Tex. Crim.
App. 1995). We review the record evidence in the light most favorable to the habeas
court’s ruling, and we must uphold that ruling absent an abuse of discretion. Kniatt v.
State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006); see Ex parte Rodriguez, 378 S.W.3d 486,
489 (Tex. App.—San Antonio 2012, pet. ref’d). We give almost total deference to the trial
court’s findings that are “’based upon credibility and demeanor.’” Ex parte Amezquita,
Ex parte Tutton Page 4
223 S.W.3d 363, 367 (Tex. Crim. App. 2006) (quoting Ex parte White, 160 S.W.3d 46, 50
(Tex. Crim. App. 2004)).
In habeas corpus proceedings, “[v]irtually every fact finding involves a
credibility determination” and “the fact finder is the exclusive judge of the
credibility of the witnesses.” Ex parte Mowbray, 943 S.W.2d 461, 465 (Tex.
Crim. App. 1996). In an article 11.072 habeas case, such as the one before
us, the trial court is the sole finder of fact. Ex parte Garcia, 353 S.W.3d 785,
788 (Tex. Crim. App. 2011). “There is less leeway in an article 11.072 context
to disregard the findings of the trial court” than there is in an article 11.07
habeas case, in which the Court of Criminal Appeals is the ultimate fact
finder.
Ex parte Ali, 368 S.W.3d 827, 830 (Tex. App.—Austin 2012, pet. ref’d). We must also defer
“not only to all implicit factual findings that the record will support in favor of a trial
court’s ruling, ‘but also to the drawing of reasonable inferences from the facts.’” Amador
v. State, 221 S.W.3d 666, 674-75 (Tex. Crim. App. 2007) (quoting Kelly v. State, 163 S.W.3d
722, 726 (Tex. Crim. App. 2005).
B. Discussion
None of the arguments made by Tutton on appeal were made in his habeas-corpus
application.2 To preserve error, Texas Rule of Appellate Procedure 33.1(a) requires the
complaining party to make a specific objection or complaint and obtain a ruling thereon
2 Tutton’s appellate complaints also do not comport with the arguments made in his “Supplemental
Response and Unopposed Request for Rehearing.” However, this is not central to this appeal because
Tutton only challenges the trial court’s denial of his habeas-corpus application, and the arguments made
in his “Supplemental Response and Unopposed Request for Rehearing” were not before the trial court at
the time the trial court denied Tutton’s habeas-corpus application. See Willover v. State, 70 S.W.3d 841, 845
(Tex. Crim. App. 2002) (“Finally, an appellate court must review the trial court’s ruling in light of what was
before the trial court at the time the ruling was made.”) (citing Weatherred v. State, 15 S.W.3d 540, 542 (Tex.
Crim. App. 2000)).
Ex parte Tutton Page 5
before the trial court. See TEX. R. APP. P. 33.1(a); see also Wilson v. State, 71 S.W.3d 346, 349
(Tex. Crim. App. 2002). Texas courts have held that points of error on appeal must
correspond or comport with objections and arguments made at trial. Dixon v. State, 2
S.W.3d 263, 273 (Tex. Crim. App. 1999) (“[A]n objection stating one legal theory may not
be used to support a different legal theory on appeal.”); see Wright v. State, 154 S.W.3d
235, 241 (Tex. App.—Texarkana 2005, pet. ref’d). “Where a trial objection does not
comport with the issue raised on appeal, the appellant has preserved nothing for review.”
Wright, 154 S.W.3d at 241; see Ex parte Tucker, 977 S.W.2d 713, 715 (Tex. App.—Fort Worth
1998) (holding that the issue of excessive bond would not be addressed on appeal when
it was not included in a habeas application that was the basis of the appeal), pet. dism’d, 3
S.W.3d 576 (Tex. Crim. App. 1999) (per curiam); see also Landrum v. State, No. 10-13-00281-
CR, 2014 Tex. App. LEXIS 10194, at *17 (Tex. App.—Waco Sept. 11, 2014, pet. ref’d) (mem.
op., not designated for publication) (“A complaint will not be preserved if the legal basis
of the complaint raised on appeal varies from the complaint made at trial. Accordingly,
because appellant’s issue does not comport with the argument made at trial, this issue
presents nothing for review . . . .” (internal citations omitted)). Because Tutton’s appellate
complaints do not comport with the arguments made in the trial court, we cannot say
that Tutton has preserved his appellate complaints for our review. See TEX. R. APP. P.
33.1(a); see also Wilson, 71 S.W.3d at 349; Dixon, 2 S.W.3d at 273.
Ex parte Tutton Page 6
In any event, even if Tutton had preserved this issue for review, the record does
not indicate that Tutton satisfied his burden of proving facts which would entitle him to
habeas relief. In his application, Tutton provided only an affidavit in which he stated
that he did not believe when he entered his guilty plea that he had to register as a sex
offender. Besides his own speculation, Tutton does not refer to any exhibits or documents
in his application. On the record as presented to the trial court, even including the
exhibits that were allegedly left out of the original documents supporting the petition and
presented to the habeas court with the request for rehearing, the trial court’s finding that
“the Applicant has failed to allege or prove any facts which, if true, would entitle him to
relief” is the only finding upon which the judgment is necessarily based, and the only one
required to support the judgment. Because the failure to register was allegedly based on
the Johnson County judgment and his discharge from TYC, those documents were critical
to a proper determination of the petition for writ of habeas corpus on the basis now
argued by Tutton on appeal. Those documents do not appear in the habeas record.
Further, it does not appear that Tutton focused on the Johnson County judgment and
TYC discharge until appeal and, thus, Tutton presents an argument on appeal that was
not presented to the habeas court; this explains why those documents are not part of the
habeas record. The problem for Tutton is that without the documents that show the
Johnson County adjudication and TYC discharge in the record, the habeas court was
Ex parte Tutton Page 7
constrained by the record to hold that Tutton had failed to allege facts, which, if true,
would entitle him to relief.
Therefore, viewing the evidence in the light most favorable to the trial court’s
ruling, we cannot say that the trial court abused its discretion in denying Tutton’s
application. See Ex Parte Wheeler, 203 S.W.3d at 324; Kniatt, 206 S.W.3d at 664; see also Ex
parte Rodriguez, 378 S.W.3d at 489. We overrule Tutton’s sole issue on appeal.
III. CONCLUSION
Having overruled Tutton’s sole issue on appeal, we affirm the judgment of the
trial court.
AL SCOGGINS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed July 9, 2015
Do not publish
[CR25]
Ex parte Tutton Page 8