Lantz, Jack Ray v. State ( 2003 )

Affirmed and Memorandum Opinion filed June 5, 2003

Affirmed and Memorandum Opinion filed June 5, 2003.

In The

Fourteenth Court of Appeals

_______________

NOS. 14-02-00726-CR &

      14-02-00787-CR

______________

JACK RAY LANTZ, Appellant

V.

THE STATE OF TEXAS, Appellee

____________________________________________

On Appeal from the 183rd District Court

Harris County, Texas

Trial Court Cause No. 872,032

____________________________________________

M E M O R A N D U M   O P I N I O N

            Jack Ray Lantz appeals a conviction for failure to register as a sex offender^[1] on the grounds that the Texas sex offender registration statute (the “statute”)^[2] violates due process and due course of law and constitutes ex post facto punishment under both the United States and Texas Constitutions.  We affirm.^[3]

                                                                   Due Process

            Appellant’s first and second issues challenge his conviction on the ground that the statute is unconstitutional on its face for vagueness^[4] under both the United States and Texas Constitutions^[5] because it does not include as an element of the offense, or otherwise assure, that an individual has been given notice of his duty to report and register before he can be convicted of the offense.

            Although appellant asserted in the trial court that the statute was unconstitutional as applied to him, his challenge on appeal is solely that the statute is unconstitutional on its face, i.e., without regard to how it applied to the facts of his case. However, a statute can be attacked as being unconstitutionally vague on its face only if the law: (1) inhibits the exercise of First Amendment rights; or (2) does not reach constitutionally protected conduct, but nevertheless fails to establish standards for the police and public that are sufficient to guard against the arbitrary deprivation of liberty interests.^[6]  See City of Chicago v. Morales, 527 U.S. 41, 52 (1999); Margraves v. State, 34 S.W.3d 912, 920 (Tex. Crim. App. 2000) (stating that, because challenged statute did not implicate constitutionally protected conduct, the Court need only determine whether it was vague as applied to appellant’s conduct, not whether it was vague on its face).

            Appellant does not assert that either of these two grounds exists in this case, but instead relies on the rationale of Lambert.  See Lambert v. Cal., 355 U.S. 225, 228-29 (1957) (holding that a city ordinance requiring registration by convicted persons violated due process where it was applied to such a person who had no actual knowledge of his duty to register and no showing was made of the probability of such knowledge).  However, Lambert does not support appellant’s position because it addressed only an “as applied” challenge.  See id. at 227-29.  In this case, appellant not only does not frame his challenge to be “as applied,” he fails to cite evidence showing either that he lacked actual knowledge of the duty to register^[7] or of the probability of that knowledge, the essential facts upon which the Lambert holding was based.  See id.

            Appellant’s reliance on Kolender and Billingslea is similarly misplaced.  See Kolender v. Lawson, 461 U.S. 352, 357-58 (1983); Billingslea v. State, 780 S.W.2d 271, 275-76 (Tex. Crim. App. 1989). Unlike the statute in this case, the one in Kolender satisfied the criteria for a facial challenge because its requirement that loiterers carry “credible and reliable” identification allowed arbitrary and discriminatory enforcement.  See Kolender, 461 U.S. at 357-58.  Conversely, the challenges addressed in Billingslea were directed to the indictment and the sufficiency of the evidence, rather than the constitutionality of the statute.  See Billingslea, 780 S.W.2d at 271.^[8]  Accordingly, that decision provides no aid to overcoming appellant’s fundamental obstacle to asserting a facial challenge to the constitutionality of the statute. Because appellant’s first two points of error are thus without merit, they are overruled.

                                                           Ex Post Facto Clause

            Appellant’s third and fourth issues contend that appellant’s conviction for failure to register as a sex offender is void because it constitutes ex post facto punishment in violation of the United States and Texas Constitutions,^[9] citing Doe v. Otte, 259 F.3d 979 (9th Cir. 2001), rev’d, Smith v. Doe, 123 S. Ct. 1140 (2003).  However, the United States Supreme Court reversed Doe, holding that the Alaska registration statute is nonpunitive and, thus, that its retroactive application does not violate the Ex Post Facto Clause.  See Smith, 123 S. Ct. at 1154.  Applying similar reasoning, the Court of Criminal Appeals has recently held likewise regarding the Texas registration statute.  See Rodriguez v. State, 93 S.W.3d 60, 69, 79 (Tex. Crim. App. 2002). Therefore, appellant’s third and fourth points of error are overruled, and the judgment of the trial court is affirmed.

                                                                        /s/        Richard H. Edelman

                                                                                    Justice

Judgment rendered and Memorandum Opinion filed June 5, 2003.

Panel consists of Justices Hudson, Edelman and Draughn.^[10]

Do Not Publish — Tex. R. App. P. 47.2(b).

---

^[1]           Appellant entered a negotiated guilty plea, and the trial court assessed punishment at one year of confinement.

^[2]           See Tex. Code Crim. Proc. Ann. arts. 62.01-.13 (Vernon Supp. 2003).

^[3]           The District Clerk’s office opened two appeals for this case because a second notice of appeal was filed under a separate cause number.  Because the briefs for both appeals present the same issues, we will address them in a single opinion.

^[4]           A contention that a statute is unconstitutional as applied to an accused because of vagueness must be asserted in the trial court or it is waived.  See Curry v. State, 910 S.W.2d 490, 496 (Tex. Crim. App. 1995).  However, a facial challenge to the constitutionality of a statute, as in this case, may be raised for the first time on appeal.  See Holberg v. State, 38 S.W.3d 137, 139 n.7 (Tex. Crim. App. 2000); Rabb v. State, 730 S.W.2d 751, 752 (Tex. Crim. App. 1987).

^[5]           See U.S. Const. amend. XIV, § 1; Tex. Const. art. I, § 19.  Because appellant cites no authority or rationale that the Texas Constitution offers any greater or different protection in this regard than the United States Constitution, we will not address the Texas constitutional claim separately.  See Hall v. State, 67 S.W.3d 870, 874 (Tex. Crim. App. 2002); Black v. State, 26 S.W.3d 895, 896 n.4 (Tex. Crim. App. 2000).

^[6]           This second criteria is met where a statute either fails to enable ordinary citizens to understand what conduct it prohibits or allows arbitrary and discriminatory enforcement.  See Morales, 527 U.S. at 56.

^[7]           Although appellant asserts that there was no evidence in this case that he was aware of the duty to report, it was his burden, as the person challenging the statute, to affirmatively establish its unconstitutionality.  See Rodriguez v. State, 93 S.W.3d 60, 69 (Tex. Crim. App. 2002).

^[8]           Citing Kolender and Lambert, Billingslea does, however, state, “Moreover, penal provisions which criminalize a failure to act without informing those subject to prosecution that they must perform a duty to avoid punishment are unconstitutionally vague.”  Id. at 275-76.  Nevertheless, a challenge to a statute based on that proposition must either be “as applied” or satisfy a criteria for a facial challenge, neither of which is present in this case.

^[9]           See U.S. Const. art. I, § 10; Tex. Const. art. I, § 16.  Again, because appellant concedes that these state and federal constitutional protections are identical, we need not separately address appellant’s state constitutional claim.  See Rodriguez v. State, 93 S.W.3d 60, 65 n.1 (Tex. Crim. App. 2002).

^[10]          Senior Justice Joe L. Draughn sitting by assignment.