Charles Ray Penigar v. State ( 2016 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-16-00100-CR
CHARLES RAY PENIGAR APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY
TRIAL COURT NO. 1424061D
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MEMORANDUM OPINION1
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I. INTRODUCTION
Appellant Charles Ray Penigar appeals his conviction for failing to comply
with sexual-offender registration requirements. In three points, Penigar argues
that the judgment incorrectly states that he was convicted of a first-degree felony;
that the jury charge erroneously contains a prior conviction as an element of the
1
See Tex. R. App. P. 47.4.
instant offense; and that Texas Local Government Code section 133.102(a)(1),
under which Penigar was assessed a $133 “consolidated court cost,” is facially
unconstitutional. Because the judgment incorrectly lists the felony offense level
as a first-degree felony, we will modify the judgment to reflect that Penigar was
convicted of a third-degree felony and affirm the judgment as modified.
II. BACKGROUND
In 1988, Penigar was convicted of sexual assault of a child and was placed
on probation for six years. Two years later, Penigar’s probation was revoked for
failing to report to his probation officer, and he was sentenced to six years’
imprisonment.
Due to his conviction for sexual assault of a child, Penigar was required to
register as a sex offender for life and to annually verify his registration during a
sixty-day window running from thirty days before to thirty days after his birthday.
See Tex. Code Crim. Proc. Ann. art. 62.101(a)(1) (West Supp. 2016) (setting
forth lifetime registration requirement); see also id. art. 62.001(5), (6) (West
Supp. 2016) (providing definitions of terms used in article 62.101). Because
Penigar’s birthday is December 9, he was required to verify his registration
between November 9 and January 8 each year. Penigar began his annual
registration as a sex offender in 1998. In 2007, Penigar was convicted for failing
to comply with his sexual offender registration requirements and was sentenced
to two years’ confinement.
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In the current case, a jury convicted Penigar of failing to comply with his
sexual offender registration requirements after he failed to verify his registration
in 2014. The jury also found that Penigar was a habitual offender, having been
previously convicted of possession in December 1991 and in July 2000. The trial
court sentenced Penigar to thirty years’ imprisonment. Penigar then perfected
this appeal.
III. ERROR IN THE JUDGMENT
In his first point, Penigar argues that the judgment incorrectly states that he
was convicted of a first-degree felony. The State agrees that the judgment
incorrectly classifies the felony offense level and that the judgment should be
modified.
Here, Penigar was charged with failing to report to the local law
enforcement authority or to verify his sexual-offender registration on or about
January 9, 2015. The failure to annually verify sexual offender registration is a
third-degree felony, which is punishable by imprisonment for not more than ten
years or less than two years. Id. art. 62.102(b)(2) (West Supp. 2016); Tex. Penal
Code Ann. § 12.34(a) (West 2011). Penigar’s prior failure-to-register conviction
from 2007 does not increase the severity level or grade of the current offense;
instead, it increases only the punishment level of the current offense. See Tex.
Code Crim. Proc. Ann. art. 62.102(c); Tex. Penal Code Ann. § 12.33(a) (West
2011) (stating that punishment range for a second-degree felony is imprisonment
for not more than twenty years or less than two years); Ford v. State, 334 S.W.3d
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230, 234–35 (Tex. Crim. App. 2011). Moreover, the jury’s habitual-offender
finding—that Penigar is a habitual offender due to his two prior possession
convictions from 1991 and 2000—increased the punishment range to twenty-five
to ninety-nine years’ or life imprisonment, but the habitual-offender finding did not
increase the felony offense level. See Tex. Penal Code Ann. § 12.42(d) (West
Supp. 2016).
Accordingly, we hold that the judgment incorrectly classifies the felony
offense level as a first-degree felony, we modify the judgment to reflect that
Penigar was convicted of a third-degree felony,2 and we sustain Penigar’s first
point. See Tex. R. App. P. 43.2(b); Garza v. State, 298 S.W.3d 837, 845 (Tex.
App.—Amarillo 2009, no pet.) (modifying judgment to correct felony offense
level).
IV. THE JURY CHARGE ERROR DOES NOT CONSTITUTE EGREGIOUS HARM
In his second point, Penigar argues that the jury charge improperly
included his prior conviction for failing to register as a sex offender as an element
of the current offense. Penigar further argues that he suffered egregious harm
due to the defective charge.
2
Penigar does not challenge the legality of his thirty-year sentence, which
falls within the punishment range after his punishment was enhanced due to the
habitual-offender finding. See id.
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A. Standard of Review
“[A]ll alleged jury-charge error must be considered on appellate review
regardless of preservation in the trial court.” Kirsch v. State, 357 S.W.3d 645,
649 (Tex. Crim. App. 2012). In our review of a jury charge, we first determine
whether error occurred; if error did not occur, our analysis ends. Id. If error
occurred, whether it was preserved determines the degree of harm required for
reversal. Id. Unpreserved charge error warrants reversal only when the error
resulted in egregious harm. Nava v. State, 415 S.W.3d 289, 298 (Tex. Crim.
App. 2013); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op.
on reh’g); see Tex. Code Crim. Proc. Ann. art. 36.19 (West 2006). The
appropriate inquiry for egregious harm is fact specific and must be performed on
a case-by-case basis. Gelinas v. State, 398 S.W.3d 703, 710 (Tex. Crim. App.
2013); Taylor v. State, 332 S.W.3d 483, 489 (Tex. Crim. App. 2011).
In making an egregious harm determination, “the actual degree of harm
must be assayed in light of the entire jury charge, the state of the evidence,
including the contested issues and weight of probative evidence, the argument of
counsel[,] and any other relevant information revealed by the record of the trial as
a whole.” Almanza, 686 S.W.2d at 171. See generally Gelinas, 398 S.W.3d at
708–10 (applying Almanza). Errors that result in egregious harm are those “that
affect the very basis of the case, deprive the defendant of a valuable right, vitally
affect the defensive theory, or make a case for conviction clearly and significantly
more persuasive.” Taylor, 332 S.W.3d at 490 (citing Almanza, 686 S.W.2d at
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172). The purpose of this review is to illuminate the actual, not just theoretical,
harm to the accused. Almanza, 686 S.W.2d at 174.
B. The Law on Using Prior Convictions to Enhance Punishment
A prior conviction for failing to register as a sex offender increases the
punishment level of the current offense to the next highest degree of felony. Tex.
Code Crim. Proc. Ann. art. 62.102(c). A prior conviction alleged for
enhancement “is not really a component element of the primary offense” but is
instead a historical fact to show the persistence of the accused and the futility of
ordinary measures of punishment as related to him. Calton v. State, 176 S.W.3d
231, 233 (Tex. Crim. App. 2005). An enhancement increases the punishment
range to a certain range above that ordinarily prescribed for the indicted crime.
Id. It does not change the offense, or the degree of the offense, of conviction.
Id. There can be no enhancement until a person is first convicted of an offense
of a certain degree. Id. at 233–34.
C. Error in the Charge
Here, Penigar complains of the following application paragraph that the
trial court included in the jury charge at guilt-innocence:
Now, if you find from the evidence beyond a reasonable doubt
that on or about the 9th day of January, 2015, in Tarrant County,
Texas, Charles Ray Penigar, did then and there intentionally or
knowingly fail to report to the local law enforcement authority, to-wit:
the police department of the City of Fort Worth, Texas, to register or
verify registration under the sex offender registration program of
Chapter 62 Texas Code of Criminal Procedure not earlier than the
30th day before and not later than the 30th day after the anniversary
of the defendant’s date of birth to verify the information in the
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registration form maintained by said law enforcement authority, and
the defendant had a reportable conviction or adjudication namely,
sexual assault, in Cause Number 0328153, on the 22nd day of
February, 1990, in the 297th District Court of Tarrant County, Texas,
and said defendant’s duty to register expires under Article 62.101(a),
of the Texas Code of Criminal Procedure[], and you further find that
prior to the commission of the offense or offenses set out above the
said defendant had been convicted of an offense under Article 62,
Texas Code of Criminal Procedure, to-wit: failure to register as a
sex offender, in Cause Number 1067661D, on the 26th day of
November, 2007, in the Criminal District Court Number One, of
Tarrant County, Texas, then you will find the defendant guilty of
failure to register as a sex offender with prior conviction for failure to
register as a sex offender as charged in the indictment. [Emphasis
added.]
Here, the State concedes that the inclusion of Penigar’s prior failure-to-register
conviction in the guilt-innocence charge as a component element of the offense
was error because “[t]here can be no enhancement until a person is first
convicted of an offense of a certain degree.” See id.
D. The Almanza Factors Weigh Against a Finding of Egregious Harm
Because Penigar stated that he had no objections to the charge, we will
reverse only if the error resulted in egregious harm. See Nava, 415 S.W.3d at
298; Almanza, 686 S.W.2d at 171. Here, the jury charge held the State to a
higher burden than that required by article 62.102 because in order for the jury to
find Penigar guilty, the State was required to prove beyond a reasonable doubt
that Penigar had failed to comply with sex offender registration requirements in
2015 and in 2007. The state of the evidence from the trial revealed that Penigar
was convicted of sexual assault of a child in 1988; that sexual assault of a child is
a reportable conviction requiring lifetime registration; that Penigar was required to
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report between November 9, 2014, and January 8, 2015; that Penigar knew of
his duty to register annually; that Penigar had made an appointment to complete
his annual registration verification; and that Penigar did not show up for his
appointment or make any contact with the Fort Worth Police Department prior to
his arrest on an outstanding warrant in August 2015. The evidence therefore
conclusively established Penigar’s current failure-to-register violation. See
Tatum v. State, 431 S.W.3d 839, 843 (Tex. App.—Houston [14th Dist.] 2014, pet.
ref’d) (holding evidence sufficient to support conviction for failure to register).
During closing argument, Penigar’s counsel reiterated Penigar’s testimony during
which he had “fully admitted” that he had previously failed to register in 2007.
The State made clear during its final closing argument that the current trial was
“not about punishing [Penigar] for . . . failing to register before [in 2007]” and that
it had only put on evidence of the 2007 conviction for failing to comply with sex
offender registration requirements because the State believed that the prior
conviction was an element of the current offense. With regard to other relevant
information, the record demonstrates that both the State and the defense
referenced the 2007 failure-to-register conviction during voir dire, treating it as if it
were an element of the current offense from the outset of the trial. Having
examined the four Almanza factors, we conclude that the erroneous inclusion of
Penigar’s prior failure-to-register conviction, which increased the State’s burden,
did not egregiously harm Penigar. See 686 S.W.2d at 171; Jackson v. State, 285
S.W.3d 181, 184 (Tex. App.—Texarkana 2009, no pet.) (“[G]iven the fact that the
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jury had already been made aware of all this information from the very outset of
the trial, it is difficult to imagine how a later delivery of the same information by
including it in the charge on guilt/innocence could be harmful.”). Accordingly, we
overrule Penigar’s second point.
V. TEXAS LOCAL GOVERNMENT CODE SECTION 133.102(A)(1) IS NOT FACIALLY
UNCONSTITUTIONAL
In his third point, Penigar argues that section 133.102(a)(1) of the Texas
Local Government Code, under which a $133 “consolidated court cost” was
assessed against him, is facially unconstitutional. Specifically, Penigar argues
that the assessment of the $133 “consolidated court cost” against him violates
the Separation of Powers Clause of the Texas constitution.
The State argues that Penigar waived his right to challenge the imposed
consolidated court cost—a nonsystemic, nonpenal challenge—because he raises
it for the first time on appeal. But we conclude, as we have in the past, that
Penigar may raise his complaint on appeal, even though he did not raise it to the
trial court, because the $133 “consolidated court cost” was not imposed in open
court or itemized in the judgment. See, e.g., Ingram v. State, No. 02-16-00157-
CR, 2016 WL 6900908, at *2 (Tex. App.—Fort Worth Nov. 23, 2016, pet. filed);
Rogers v. State, No. 02-16-00047-CR, 2016 WL 4491228, at *1 (Tex. App.—Fort
Worth Aug. 26, 2016, pet. filed) (mem. op., not designated for publication) (both
cases relying on London v. State, 490 S.W.3d 503, 506–07 (Tex. Crim. App.
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2016)). But even though Penigar did not waive his argument, it is unavailing in
light of this court’s recent holding in Ingram. See 2016 WL 6900908, at *3.
The $133 “consolidated court cost” at issue was authorized by the local
government code. Tex. Loc. Gov’t Code Ann. § 133.102(a)(1) (West Supp.
2016). With his facial challenge, Penigar has the burden to establish this
statute’s unconstitutionality. See Peraza v. State, 467 S.W.3d 508, 514 (Tex.
Crim. App. 2015), cert. denied, 136 S. Ct. 1188 (2016). To successfully do so,
Penigar must establish that no set of circumstances exists under which this
statute would be valid. See id. We look for an interpretation that supports and
upholds a statute’s constitutionality unless the contrary interpretation is clearly
shown. See id. Regarding statutes authorizing the imposition of court costs
against criminal defendants, the court of criminal appeals has specified that for
such statutes to pass constitutional muster, they must “provide[] for an allocation
of . . . court costs to be expended for legitimate criminal justice purposes,” which
are ones that “relate[] to the administration of our criminal justice system.” Id. at
517–18.
Regarding section 133.102(a)(1)’s $133 “consolidated court cost,” Penigar
asserts that three of the fourteen prescribed percentage allocations for the $133
are not legitimate criminal-justice purposes. Specifically, he points to (1) the
allocation of 5.0034% to “law enforcement officers standards and education,”
which is now collected into an account in the general revenue fund; (2) the
allocation of 9.8218% to “comprehensive rehabilitation,” which is spent at the
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direction of an agency in the executive branch; and (3) the allocation of 0.0088%
to a fund for “abused children’s counseling” with no statutory direction to which
State account the percentage should be directed. See Tex. Loc. Gov’t Code
Ann. § 133.102(e)(1), (5), (6). We follow our decision in Ingram in which we
concluded, as have other courts of appeals, that these three enumerated
designated uses as written are related to the administration of the criminal justice
system and that the legislature’s directive to the comptroller to disburse those
monies from the general revenue fund for those uses passes constitutional
muster. See 2016 WL 6900908, at *3 (citing Salinas v. State, 485 S.W.3d 222,
226 (Tex. App.—Houston [14th Dist.] 2016, pet. granted); Penright v. State, 477
S.W.3d 494, 497–500 (Tex. App.—Houston [1st Dist.] 2015, pet. granted);
Denton v. State, 478 S.W.3d 848, 851–52 (Tex. App.—Amarillo 2015, pet. ref’d)
(concluding section 133.102 did not violate Takings Clause of Texas
constitution)). Accordingly, Penigar has failed to carry his burden to establish
that section 133.102 cannot operate constitutionally under any circumstance, i.e.,
that the statute is invalid in all possible applications. See id. (citing McAfee v.
State, 467 S.W.3d 622, 645–47 (Tex. App.—Houston [1st Dist.] 2015, pet. ref’d);
O’Bannon v. State, 435 S.W.3d 378, 381–82 (Tex. App.—Houston [14th Dist.]
2014, no pet.)).
We overrule Penigar’s third point.
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VI. CONCLUSION
Having sustained Penigar’s first point, we modify the judgment to reflect
that Penigar was convicted of a third-degree felony. Having overruled Penigar’s
remaining points, we affirm the judgment as modified. See Tex. R. App. P.
43.2(b).
/s/ Sue Walker
SUE WALKER
JUSTICE
PANEL: WALKER and MEIER, JJ.; KERRY FITZGERALD (Senior Justice,
Retired, Sitting by Assignment).
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: December 22, 2016
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