William Earl Durham v. State ( 2013 )

Opinion issued June 13, 2013
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-12-00459-CR
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WILLIAM EARL DURHAM, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 75th District Court
Liberty County, Texas
Trial Court Case No. CR28475
MEMORANDUM OPINION
A jury found appellant William Earl Durham guilty of the offense of failing
to comply with sex-offender registration requirements. 1 Appellant entered a plea
of true to an enhancement allegation of a prior felony conviction, elevating the
punishment range from a third-degree felony to a second-degree felony. 2 The jury
assessed appellant’s punishment at 12 years in prison.
Appellant raises two issues on appeal.3 He challenges the trial court’s
decision not to admit certain evidence and raises an ineffective assistance of
counsel claim.
We affirm.
Background
On April 20, 1994, appellant was convicted in 230th District Court of Harris
County of the offense of burglary of a habitation with the intent to commit sexual
assault. Based on the conviction, appellant was instructed to register as a sex
offender with the local law enforcement authority. After he was released from
1
See TEX. CODE CRIM. PROC. ANN. art. 62.001 (Vernon Supp. 2012); TEX. CODE
CRIM. PROC. ANN. art. 62.051 (Vernon Supp. 2012).
2
See TEX. CODE CRIM. PROC. ANN. art. 62.102 (Vernon 2006); TEX. PENAL CODE
ANN. § 12.42(a) (Vernon Supp. 2012).
3
This appeal, originally filed in the Ninth Court of Appeals, Beaumont, Texas, was
transferred to the First Court of Appeals, Houston, Texas. See TEX. GOV’T CODE
ANN. § 73.001 (Vernon 2013).
2
prison, appellant lived in Liberty, Texas, at a home owned by his mother. While
residing there, appellant registered as a sex offender with the Liberty Police
Department.
In December 2010, appellant was indicted by a grand jury in Liberty County
for failure to comply with the sex-offender registration requirements. At trial, the
State offered proof that appellant no longer resided at his mother’s house and that
he had failed to provide his new address to local law enforcement authorities.
Appellant asserted that he had complied with the registration requirements.
Appellant also contended that he was not required to register as a sex
offender, although he had been registering for a number of years, because he had
not been convicted of an offense for which he was required to register. To support
this contention, appellant sought to admit into evidence documents from a 2005
post-conviction application for writ of habeas corpus proceeding filed in the 230th
District Court of Harris County. The habeas proceeding related to a dispute
regarding appellant’s parole for the burglary conviction. Among the documents
appellant sought to admit were the findings of fact and conclusions of law signed
by the habeas court. The State objected that the documents were not relevant and
would confuse the jury. The trial court sustained the State’s objection and denied
appellant’s request to admit the documents, including the findings of fact and
conclusions of law.
3
The jury found appellant guilty of the offense of failure to comply with the
sex-offender registration requirements. Appellant pleaded true to a felony-
enhancement allegation in the indictment, elevating the punishment range from a
third-degree felony to a second-degree felony. The jury assessed appellant’s
punishment at 12 years in prison.
Appellant now appeals, raising two issues. Appellant contends that he
received ineffective assistance of counsel at trial and that the trial court erred by
denying his request to admit into evidence the findings of fact and conclusions of
law from the 2005 habeas proceeding.
Evidentiary Ruling
In his second issue, appellant complains that he is entitled to the defense of
mistake of law and that the trial court erred when it refused to admit the findings of
fact and conclusions of law from the 2005 habeas proceeding, which he contends
indicate that he had not been convicted of an offense for which he was required to
register as a sex offender. Appellant argues that, by refusing to admit the findings
of fact and conclusions of law, the trial court deprived him of his ability to present
his defense of mistake of law.
A. Standard of Review
We review a trial court’s decision to admit or to exclude evidence for abuse
of discretion. See Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010).
4
A trial court abuses its discretion only if its decision is “so clearly wrong as to lie
outside the zone within which reasonable people might disagree.” Taylor v. State,
268 S.W.3d 571, 579 (Tex. Crim. App. 2008).
B. Statutory Provisions
To understand appellant’s evidentiary argument, it is necessary first to
understand the relevant statutes involved.
A person commits the offense of failure to comply with the sex-offender
registration requirements if he “is required to register and fails to comply” with any
of the registration requirements set out in chapter 62 of the Texas Code of Criminal
Procedure. TEX. CODE CRIM. PROC. art. 62.102(a) (Vernon 2006); see Young v.
State, 341 S.W.3d 417, 425 (Tex. Crim. App. 2011). A person who is “required to
register” is one who, among other circumstances, has a “reportable conviction or
adjudication.” TEX. CODE CRIM. PROC. art. 62.051(a) (Vernon Supp. 2012)
(providing that person who has reportable conviction “shall register . . . with the
local law enforcement authority”).
A conviction or adjudication for the offense of burglary may be a
“reportable conviction or adjudication” for purposes of sex-offender registration.
See TEX. CODE CRIM. PROC. 62.001(5)(D) (Vernon Supp. 2012). Code of Criminal
Procedure article 62.001(5)(D) defines the phrase “reportable conviction or
adjudication” to include
5
(D) a violation of Section 30.02 (Burglary), Penal Code, if the offense
or conduct is punishable under Subsection (d) of that section and the
actor committed the offense or engaged in the conduct with intent to
commit a felony listed in Paragraph (A) or (C).
Id. Based on this provision, to determine whether a person must register as a sex
offender when convicted of burglary, it is necessary to ascertain the following two
components:
• (1) Whether the offense or conduct is punishable under Penal Code
subsection 30.02(d); and
• (2) Whether the person committed the burglary offense or engaged in the
conduct with the intent to commit a felony listed in Code of Criminal
Procedure article 62.001(5)(A) or 62.001(5)(C).
See id. Here, appellant was convicted of burglary of a habitation with the intent to
commit sexual assault. Sexual assault is a felony listed in 62.001(5)(A). See id.
art. 62.001(5)(A).
When appellant committed the burglary offense in 1992, Penal Code
subsection 30.02(d) provided,
(d) [The offense of burglary] is a felony of the first degree if:
(1) the premises are a habitation; or
(2) any party to the offense is armed with explosives or a
deadly weapon; or
(3) any party to the offense injures or attempts to injure
anyone in effecting the entry or while in the building or
in immediate flight from the building.
6
Act of May 24, 1973, 63d Leg., R.S., ch. 399, § 1, sec. 30.02, 1973 Tex. Gen.
Laws 883, 926–27 (amended 1993, 1995, 1999) (current version at TEX. PENAL
CODE ANN. § 30.02 (Vernon 2011)) (cited hereinafter as “Former § 30.02(d)”).
The judgment of conviction admitted into evidence in this case shows that
appellant was convicted of the first-degree felony offense burglary of a habitation
with the intent to commit sexual assault. 4 It is not disputed that appellant’s
burglary conviction was determined to be a felony of the first degree under former
Penal Code subsection 30.02(d). Thus, appellant’s conviction for the first-degree
felony offense burglary of a habitation with the intent to commit sexual assault is a
reportable conviction pursuant to Code of Criminal Procedure article 62.001(5)(D)
for which he was required to register as a sex offender. See TEX. CODE CRIM.
PROC. art. 62.001(5)(D).
C. Discussion
In the trial court, appellant argued that the findings of fact and conclusions
of law from the 2005 habeas proceeding should be admitted because they provided
a basis for him to believe that he was not required to comply with the sex-offender
4
Two judgments nunc pro tunc were signed regarding appellant’s burglary
conviction, but appellant does not argue that the signing of the nunc pro tunc
judgments support his appellate challenges. The record is clear that appellant was
convicted of the first-degree felony offense of burglary of a habitation with the
intent to commit sexual assault. The most recent judgment nunc pro tunc from
2006, expressly indicates that appellant was convicted of burglary of a habitation
with the intent to commit sexual assault.
7
registration requirements. Appellant asserted that the findings of fact and
conclusions of law indicated that he had not been convicted of burglary of a
habitation with the intent to commit sexual assault; rather, he had been convicted
of the offense of simple first-degree burglary of a habitation.
The State objected on the ground that the findings of fact and conclusions of
law from the 2005 habeas proceeding were not relevant to whether appellant was
required to comply with the sex-offender registration requirements. The trial court
sustained the State’s objection and denied appellant’s request to admit the
document. We determine whether the trial court abused its discretion in sustaining
the State’s relevancy objection and denying appellant’s request to admit the
findings of fact and conclusions of law.
In the 2005 habeas proceeding, appellant did not challenge his conviction for
burglary of a habitation with intent to commit sexual assault. Instead, the
proceeding involved a dispute relating to his eligibility for release on mandatory
supervision for the burglary offense. Determination of whether appellant had been
eligible for mandatory supervision required the habeas court to determine which
subpart part of former Penal Code section 30.02(d) applied to appellant’s burglary
conviction.
8
In its findings of fact and conclusions of law, the habeas court determined
that appellant had been convicted pursuant to former subsection 30.02(d)(1). 5 That
subsection provided that a burglary offense was a first-degree felony if the
premises involved was a habitation. See Former § 30.02(d)(1). The habeas court
also determined that appellant had not been convicted pursuant to former Penal
Code subsections 30.02(d)(2) or 30.02(d)(3). Those subsections provided that the
offense of burglary is a felony of the first degree if “any party to the offense is
armed with explosives or a deadly weapon” or “any party to the offense injures or
attempts to injure anyone in effecting entry or while in the building or in
immediate flight from the building.” See Former § 30.02(d)(2), (3).
Although not entirely clear, appellant appears to have argued in the trial
court that, by its findings of fact and conclusions of law, the habeas court
implicitly determined that he had not injured or attempted to injure anyone during
the burglary. He asserted that, based on this determination, he could not have had
the intent to commit sexual assault when he committed the burglary. Appellant
asserted that, absent the intent to commit sexual assault, he had not been convicted
of an offense for which he was required to register as a sex offender. See TEX.
CODE CRIM. PROC. art. 62.001(5)(A), (D).
5
The findings of fact and conclusions of law were not admitted into evidence but
are contained in the record.
9
On appeal, appellant contends that, by refusing to admit the findings of fact
and conclusions of law, the trial court deprived him of his ability to assert the
affirmative defense of mistake of law. Penal Code section 8.03, entitled, “Mistake
of Law,” provides in relevant part:
(b) It is an affirmative defense to prosecution that the actor reasonably
believed the conduct charged did not constitute a crime and that he
acted in reasonable reliance upon:
....
(2) a written interpretation of the law contained in an
opinion of a court of record or made by a public official
charged by law with responsibility for interpreting the
law in question.
TEX. PENAL CODE ANN. § 8.03(b)(2) (Vernon 2011).
Citing Penal Code section 8.03, appellant asserts that, had the findings of
fact and conclusions of law been admitted into evidence, he would have argued
that he did not comply with the sex-offender registration requirements because he
reasonably relied on the habeas court’s findings and conclusions, which he
believed showed that he had not been convicted of an offense for which he had to
register. Appellant intimates that he relied on the habeas court’s implicit
determination that he had not injured or attempted to injure anyone during the
course of the burglary, and, thus, he could not have had the intent to commit sexual
assault when he committed the burglary.
10
Appellant’s position, however, is contrary to the law. Proving the offense of
burglary of a habitation with the intent to commit sexual assault does not require a
showing that appellant injured or attempted to injure anyone during the burglary.
See Ford v. State, 632 S.W.2d 151, 153 (Tex. Crim. App. 1982). Nor does it
require a showing that appellant committed or attempted to commit sexual assault.
See id. Appellant was not convicted of burglary by entering a habitation and
actually committing or attempting to commit a sexual assault, a separate offense
from burglary of a habitation with the intent to commit sexual assault. Compare
TEX. PENAL CODE ANN. § 30.02(a)(1) with § 30.02(a)(3). A conviction for the
offense of burglary of a habitation with the intent to commit sexual assault only
requires a showing that appellant intended to commit sexual assault when he
entered the habitation, not that he actually attempted to commit or committed
sexual assault. See Ford, 632 S.W.2d at 153.
As stated, the trial court sustained the State’s objection that the findings of
fact and conclusions of law were not relevant. Relevant evidence is evidence that
has “any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be
without the evidence.” TEX. R. EVID. 401. Evidence that is not relevant is not
admissible. TEX. R. EVID. 402.
11
Given the law, the habeas court’s determination that appellant was not
convicted under former Penal Code subsections 30.02(d)(2) or 30.02(d)(3)—that
is, was not found to have been armed with explosives or a deadly weapon, or to
have injured or attempted to injure anyone during the burglary—did not tend to
support a reasonable belief by appellant that he was not convicted of an offense for
which he had to register as a sex offender. Based on the offense for which he was
convicted, appellant offers no argument to show why it was reasonable for him to
believe that the findings of fact and conclusions of law established that he was not
required to comply with the sex-offender registration requirements.
We conclude it was within the trial court’s discretion to determine that the
findings of fact and conclusions of law were not relevant evidence. See TEX. R.
EVID. 401. We hold that the trial court did not abuse its discretion when it
sustained the State’s relevancy objection and excluded the findings of fact and
conclusions of law. See TEX. R. EVID. 402.
We overrule appellant’s second issue.
Ineffective Assistance of Counsel
In his first issue, appellant contends that he received ineffective assistance of
counsel at trial.
12
A. Applicable Legal Principles
To prevail on a claim of ineffective assistance of counsel, an appellant must
show the following: (1) counsel’s performance fell below an objective standard of
reasonableness and (2) a reasonable probability exists that, but for counsel’s errors,
the result would have been different. See Strickland v. Washington, 466 U.S. 668,
687–88, 694, 104 S. Ct. 2052, 2064, 2068 (1984); Andrews v. State, 159 S.W.3d
98, 101 (Tex. Crim. App. 2005). The first Strickland component requires appellant
to overcome the strong presumption that counsel’s performance falls within a wide
range of reasonable professional assistance. See Andrews, 159 S.W.3d at 101. The
second Strickland component requires appellant to show that there is a reasonable
probability that, but for counsel’s errors, the result of the proceeding would have
been different. See id. at 102. A “reasonable probability” is a probability
sufficient to undermine confidence in the outcome. See id.
Appellant has the burden to establish both components by a preponderance
of the evidence. See Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App.
1998). A failure to show either (1) deficient performance or (2) sufficient
prejudice defeats the ineffectiveness claim. See Williams v. State, 301 S.W.3d 675,
687 (Tex. Crim. App. 2009); Carballo v. State, 303 S.W.3d 742, 750 (Tex. App.—
Houston [1st Dist.] 2009, pet. ref’d).
13
B. Analysis
In his brief, appellant contends, “It is clear from the record that [appellant’s]
main strategy [at trial] was that he was not subject to registration as his case was
not a reportable offense.” Appellant again relies on his assertion that the habeas
court’s findings of fact and conclusions of law provided a basis to argue that he
had not been convicted of the offense of burglary of a habitation with the intent to
commit sexual assault but had instead been convicted of only simple burglary.
Appellant asserts that defense counsel should have moved to quash the indictment
on this basis. He also contends that defense counsel should have re-urged the
admission of the findings of fact and conclusions of law during appellant’s trial
testimony, pointing to instances when he contends the State, on cross-examination,
“opened the door” to the admission of the document. As discussed, the findings of
fact and conclusions of law do not serve as a basis to support an argument that
appellant was not convicted of the offense of burglary of a habitation with the
intent to commit sexual assault. See Ford, 632 S.W.2d at 153.
A motion to quash the indictment based on the assertion that appellant was
not convicted of an offense for which he was required to comply with the sex-
offender registration requirements because the habeas court determined that he had
not been convicted under Penal Code subsections 30.02(d)(2) or 30.02(d)(3) would
have been properly denied by the trial court. Similarly, appellant has not shown
14
that any further request to admit the findings of fact and conclusions of law into
evidence to show mistake of law or to show appellant was not required to comply
with the registration requirements would have been successful.
Counsel is not ineffective for failing to undertake futile actions. See Mooney
v. State, 817 S.W.2d 693, 698 (Tex. Crim. App. 1991); see also Ex parte Chandler,
182 S.W.3d 350, 356 (Tex. Crim. App. 2005) (“[A] reasonably competent counsel
need not perform a useless or futile act[.]”)). We hold that appellant has not met
his burden to satisfy the first Strickland component to demonstrate by a
preponderance of the evidence that his trial counsel’s performance fell below an
objective standard of reasonableness. See Strickland, 466 U.S. at 687–88, 104 S.
Ct. at 2064; Andrews, 159 S.W.3d at 101–02.
We overrule appellant’s first issue.
Conclusion
We affirm the judgment of the trial court.
Laura Carter Higley
Justice
Panel consists of Justices Keyes, Higley, and Bland.
Do not publish. TEX. R. APP. P. 47.2(b).
15