Robert Dale Ware v. State ( 2004 )

  Opinion issued December 23, 2004.

  In The

Court of Appeals

For The

First District of Texas

---

NO. 01-03-01138-CR

---

ROBERT DALE WARE, Appellant

V.

THE STATE OF TEXAS, Appellee

---

On Appeal from the 262nd District Court

Harris County, Texas

Trial Court Cause No. 904100

---

MEMORANDUM OPINION

          Appellant, Robert Dale Ware, waived a jury trial and entered a plea of not guilty for failure to register as a sex offender as required under the Texas Code of Criminal Procedure. The trial court found appellant guilty and sentenced him to five years’ confinement in the Texas Department of Criminal Justice-Institutional Division.

           Appellant’s appointed counsel filed a brief stating that, in his opinion, the appeal is frivolous. The brief meets the requirements of Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967), by presenting a professional evaluation of the record and stating why there are no arguable grounds for error on appeal. See Gainous v. State, 436 S.W.2d 137, 138 (Tex. Crim. App. 1969). Appellant filed a pro se brief.

          In his first issue, appellant asserts that the trial court erred in sentencing him because the charged offense should be punishable as a state jail felony rather than a third degree felony. In his last two issues, appellant contends that the indictment is defective because the Sex Offender Registration statute, upon which the indictment is based, is unconstitutionally vague. We hold that appellant has raised no arguable grounds for appeal.

Factual and Procedural Background

          Appellant was charged with failure to comply with the sexual registration requirements under Chapter 62 of the Texas Code of Criminal Procedure. The indictment alleged that the underlying sexual crime was for a conviction for rape that occurred on December 7, 1978, for which appellant was sentenced to 20 years’ confinement in the Texas Department of Criminal Justice-Institutional Division.

          At trial, Houston Police Department (“HPD”) Sergeant Gregg Kuschel testified that appellant registered with the HPD Sex Crimes Division on January 22, 2001. Kuschel testified that, during his initital registration, appellant signed an “Adult Sex Offender Registration Acknowledgment Form.” This form reflected appellant’s lifetime registration and annual reporting requirements. The form also listed nine potential offenses that could trigger lifetime registration, and the offense of “Sexual Assault” was underlined. Appellant initialed each section and indicated that he understood his responsibilities. Kuschel further testified that, since appellant’s initial registration, appellant never returned to verify his registration or made any attempt to contact the Sex Crimes Division.

          Because he failed to verify his information with the Sex Crimes Division, appellant was charged with failure to comply with the Sex Offender Registration statute. The trial court denied appellant’s Motion to Set Aside the Indictment and held that the offense of rape (Texas Penal Code section 21.02, since repealed) is now encompassed under Texas Penal Code section 21.011, Sexual Assault, and can be considered a sexually violent offense under the Sex Offender Registration statute.

Punishment Range

          In his first issue, appellant asserts that he has been denied equal protection under the law because the trial court considered the charged offense as a third degree felony, rather than a state jail felony. Specifically, appellant argues that the trial court should have assessed his punishment within the range for a state jail felony instead of a third degree felony, because “rape” is not specifically listed as a “sexually violent offense” under article 62.01(6) of the Texas Code of Criminal Procedure. We disagree.  

          Under the current Sex Offender Registration Program (“SORP”), a person who has been convicted of a sexually violent offense should “report to local law enforcement authority . . . once each year not earlier than the 30th day before and not later than the 30th day after the anniversary of the person’s date of birth to verify the information in the registration form maintained by the authority for that person. Tex. Code Crim. Proc. Ann. art. 62.06(a) (Vernon Supp. 2005). Failure to comply with the registration requirements is a state jail felony if a person’s duty to register is based on an adjudication of delinquent conduct or on a conviction or on an order of deferred adjudication. Tex. Code Crim. Proc. Ann. art. 62.10 (b)(1) (Vernon Supp. 2005). The violation becomes a third degree felony if the sex offender has one conviction for a sexually violent offense and is required to verify registration once each year. Id. art. 62.10 (b)(2). Accordingly, the issue of whether appellant’s failure to comply with the SORP should be considered a state jail felony or a third degree felony depends on whether appellant’s underlying rape conviction can be considered a sexually violent offense.

          The Code of Criminal Procedure provides in part, “ ‘Sexually violent offense’ means any of the following offenses committed by a person 17 years or older: (A) an offense under Section 22.11(a)(1) (Indecency with a child), 22.011 (Sexual assault), or 22.021 (Aggravated sexual assault) . . . .” Tex. Code Crim. Proc. Ann. art. 62.01(6)(A) (Vernon Supp. 2005). The former “rape” statute, under former Texas Penal Code section 21.02, was replaced by the sexual assault and aggravated sexual assault statutes. See Tex. Pen. Code §§22.011 & 22.021 (Vernon Supp. 2005). These sexual assault statutes encompass the conduct previously included in the rape and aggravated rape statutes. Because the former offenses of rape and aggravated rape are the statutory predecessors to sexual assault and aggravated sexual assault and because sexual assault and aggravated sexual assault are classified as “sexually violent offenses,” appellant’s rape conviction can be considered a sexually violent offense under article 62.01(6) of the Texas Code of Criminal Procedure.

          Furthermore, this Court has held that the legislature intended the predecessor statues of those offenses listed in article 62.01(6) to be considered sexually violent offenses. See Turner v. State, 101 S.W.3d 750, 757 (Tex. App.— Houston [1st Dist.] 2003, pet. ref’d) (holding an offense defined in a predecessor statute of those offenses listed in subarticle 62.01(6) is also a sexually violent offense for purposes of the sex offender registration act). Accordingly, because the former “rape” statute is a predecessor statute to sexual assault, which is a sexually violent offense, and because sexual assault is punishable as a third degree felony, the trial court properly assessed appellant’s punishment within the range of a third degree felony.  

            We conclude that there is no merit to appellant’s first issue.  

Defective Indictment

          In his last two issues, appellant contends that, because the indictment was based on the vague and uncertain language of the Sex Offender Registration statute, the trial court abused its discretion in failing to grant appellant’s Motion to Set Aside the Indictment. In a supplemental reply brief, appellant also claims that the Sex Offender Registration statute is unconstitutionally vague because it fails to provide adequate notice of the proscribed criminal conduct, thereby violating the Fourteenth Amendment of the United States Constitution.                        To preserve error on appeal, the record must show that appellant made a timely request, objection, or motion. See Tex. R. App. P. 33.1(a)(1). An attack on a statute’s constitutionality may be waived if the proper request, objection, or motion is not asserted in the trial court. See Curry v. State, 910 S.W.2d 490, 496 (Tex. Crim. App. 1995); see also Solis v. State, 945 S.W.2d 300, 301 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d) (noting that almost every constitutional and statutory right may be waived by failing to object in the trial court). The failure to make a specific objection at trial waives a party’s complaint on appeal. See Curry, 910 S.W.2d at 496.

          In this case, there is no evidence in the record that appellant specifically objected at trial to the fact that the statute was vague thus violating the Fourteenth Amendment. Because he failed to make this constitutional challenge in the trial court, appellant has not preserved this issue for appellate review. See Tex. R. App. P. 33.1(a)(1).  

          We conclude that there is no merit to appellant’s last two issues.   

        Conclusion

          After reviewing appellant’s pro se responses and conducting an independent examination of the appellate record, we conclude that there are no arguable grounds for appeal. Accordingly, we affirm the judgment of the trial court and grant appellate counsel’s motion to withdraw. See Moore v. State, 466 S.W.2d 289, 291 (Tex. Crim. App. 1971); Stephens v. State, 35 S.W.3d 770,771 (Tex. App.—Houston [1st Dist.] 2000, no pet.).  

                                                             George C. Hanks, Jr.

                                                             Justice

Panel consists of Justices Nuchia, Hanks, and Higley.

Do not publish. Tex. R. App. P. 47.4.