Bennie Ray Johnson v. State

In The
Court of Appeals
Ninth District of Texas at Beaumont
_________________
NO. 09-11-00429-CR
_________________
BENNIE RAY JOHNSON, Appellant
V.
THE STATE OF TEXAS, Appellee
________________________________________________________________________
On Appeal from the 359th District Court
Montgomery County, Texas
Trial Cause No. 11-05-05840-CR
________________________________________________________________________
MEMORANDUM OPINION
After accepting a plea-bargain agreement, the trial court gave Bennie Ray
Johnson permission to appeal, allowing him to challenge the constitutionality of the sex
offender registration statute. See Act of May 26, 1991, 72nd Leg., R.S., ch. 572, § 1,
1991 Tex. Gen. Laws 2029, 2029-2030 (amended 1993, 1995, 1997, 1999, 2001, 2003,
2005, 2007, 2009, 2011) (current version at Tex. Code Crim. Proc. Ann. arts. 62.001-.408
(West 2006 & Supp. 2012)). Johnson was convicted of failing to register as required by
the sex offender registration statute based on his failure to report to the Sheriff’s Office of
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Montgomery County, Texas, within seven days of having arrived there. See Tex. Code
Crim. Proc. Ann. art. 62.051(a) (West Supp. 2012). Johnson’s written stipulation, signed
in connection with his plea agreement, reflects that Johnson admitted that he failed to
report within seven days to the sheriff’s office as alleged by the indictment and that
Johnson was required to register due to his 1998 conviction for aggravated sexual assault
of a child.
In one appellate issue, Johnson contends certain 1999 and 2005 amendments to the
sex-offender-registration-statute violate article I, section 16 of the Texas Constitution.
See Tex. Const. art. I, § 16 (the ex post facto provision); see also Grimes v. State, 807
S.W.2d 582, 583-84 (Tex. Crim. App. 1991) (when interpreting the State constitution’s
ex post facto provision, the Court of Criminal Appeals has followed the United States
Supreme Court’s interpretation of the federal constitution’s ex post facto clause). 1
Having considered Johnson’s arguments, we are not persuaded that the registration
statute at issue was applied retroactively; we overrule Johnson’s issue and affirm the trial
court’s judgment.
Ex Post Facto Prohibition
A penal statute cannot be lawfully applied retroactively to obtain a conviction
based on conduct that was not criminal when it occurred. See Ieppert v. State, 908
S.W.2d 217, 219 (Tex. Crim. App. 1995). “An ex post facto law: 1) punishes as a crime
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A defendant may raise an ex post facto claim for the first time on appeal. Ieppert
v. State, 908 S.W.2d 217, 220 (Tex. Crim. App. 1995).
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an act previously committed which was innocent when done; 2) changes the punishment
and inflicts a greater punishment than the law attached to a criminal offense when
committed; or 3) deprives a person charged with a crime of any defense available at the
time the act was committed.” Rodriguez v. State, 93 S.W.3d 60, 66 (Tex. Crim. App.
2002). Nevertheless, some statutes, such as civil statutes that create civil remedies and
that do not inflict punishment under constitutional standards, may be applied
retroactively. See id. at 67-68. Whether a legislative change has a sufficient effect on
punishment to violate the Constitution “is a matter of degree[,]” and “[a] statutory
amendment that creates only the most speculative and attenuated possibility of producing
the prohibited effect of increasing the measure of punishment does not violate the Ex Post
Facto Clause.” Johnson v. State, 930 S.W.2d 589, 591, 593 (Tex. Crim. App. 1996)
(concluding that statute passed after defendant committed a crime, which permitted an
out-of-state sentence to be used in cumulating the defendant’s sentence, operated
retroactively as a criminal punishment, violating article I, section 10 of the U.S.
Constitution).
Johnson argues that chapter 62 of the Texas Code of Criminal Procedure, which
imposes various requirements on persons required to register as sex offenders, violates
the Texas Constitution’s Ex Post Facto Clause. Johnson claims that the amendments to
chapter 62 affected his “vested rights”—rights that he argues vested in 1998 when he was
convicted on a charge of aggravated sexual assault of a child.
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Several factors guide a court in deciding whether a statute operates retroactively in
a prohibited manner. One factor courts have considered is “‘whether a statute assigns
more disadvantageous criminal or penal consequences to an act than did the law in place
when the act occurred, [and] it is irrelevant whether the statutory change touches any
vested rights.’” Grimes, 807 S.W.2d at 587 (quoting Weaver v. Graham, 450 U.S. 24, 29
n.13, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981)). Another court has considered whether the
statute is procedural or substantive, as “[l]aws altering procedure do not generally fall
within the prohibition.” Ibarra v. State, 11 S.W.3d 189, 192 (Tex. Crim. App. 1999).
Other factors that may be considered in determining whether a statute has a prohibited
retroactive affect include:
• “whether the sanction involves an affirmative disability or restraint;”
• “whether it has traditionally been regarded as a punishment;”
• “whether it comes into play only on a finding of scienter;”
• “whether its operation will promote the traditional aims of punishment—
retribution and deterrence;”
• “whether the behavior to which it applies is already a crime;”
• “whether an alternative purpose to which it may rationally be connected is
assignable to it;” and
• “whether it appears excessive in relation to the alternative purpose
assigned.”
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Rodriguez, 93 S.W.3d at 68 (citing Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69,
83 S.Ct. 554, 9 L.Ed.2d 644 (1963)).
Numerous changes have been made over the years to the sex offender registration
program that have not been considered to have made the statute punitive. For example,
the Court of Criminal Appeals, rejecting a claim that the 1999 amendments to the sex
offender registration program violate prohibitions against cruel and unusual punishments,
stated: “[T]he 1999 version of the [sex offender registration program], like the 1997
version, is non-punitive in both intent and effect.” Ex parte Robinson, 116 S.W.3d 794,
798 (Tex. Crim. App. 2003). Another court noted that the 2005 changes to the sex
offender registration program were adjustments to the registration statute to make it more
easily understood by those required to register. See Reynolds v. State, No. 10-10-00306-
CR, 2012 WL 3629361, at *6 (Tex. App.—Waco Aug. 23, 2012, pet. filed). In
Rodriguez, the Court of Criminal Appeals considered an ex post facto challenge to the
1997 amendments to the sex-offender-registration statute. Rodriguez, 93 S.W.3d at 68-
79. In 1999, Rodriguez was indicted for failing to register as a sex offender. Id. at 66. His
indictment was based on a 1987 conviction for aggravated sexual assault, made
reportable by the 1997 amendments to chapter 62. Id. at 65-66. After analyzing the
Kennedy factors, the Court of Criminal Appeals declined to hold the amendments to the
registration statute unconstitutional, held that the challenged amendments were civil, and
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stated the amendments to the statute were remedial in nature and not “so punitive as to
transform the statute into a criminal sanction.” Id. at 79.
Although the amendments at issue here are not identical to those the Court of
Criminal Appeals considered in Rodriguez, the question we must answer is the same:
whether the amendments at issue to the sex offender registration statute assigned
sufficient criminal or penal consequences to transform the statute into a criminal
sanction. See id. at 79, Grimes, 807 S.W.2d at 587. Significantly, Johnson presents no
argument that any of the Kennedy factors favor a finding that the amendments at issue
violate the prohibition against making an ex post facto law. See Kennedy, 372 U.S. at
168-69; Rodriguez, 93 S.W.3d at 68.
Although Johnson has not addressed the Kennedy factors in his brief, he advances
several claims regarding the retroactive effect of the amendments at issue. According to
Johnson, article 62.02, § 5(g) of the Texas Code of Criminal Procedure is
unconstitutional because it effects a criminal punishment, and it is designed to operate
retroactively. See Act of May 26, 1999, 76th Leg., R.S., ch. 1193, § 5, 1999 Tex. Gen.
Laws 4178, 4179-80 (amended 2001, 2003, 2005, 2009, 2011) (current version at Tex.
Code Crim. Proc. Ann. art. 62.051). As added in 1999, subsection 5(g) required persons
having a reportable conviction, if employed or attending school in another state, to
register there. Id. Johnson also challenges the constitutionality of former article 62.062 of
the Texas Code of Criminal Procedure, redesignated in 2005 as article 62.059; he claims
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the provision violates the prohibition on making ex post facto laws. See Act of May 26,
1999, 76th Leg., R.S., ch. 444, § 8, 1999 Tex. Gen. Laws 2824, 2827, amended by Act of
May 26, 2005, 79th Leg., R.S., ch. 1008, § 1.01, art. 62.059, 2005 Tex. Gen. Laws 3385,
3403 (current version at Tex. Code Crim. Proc. Ann. art. 62.059 (West 2006)). Former
article 62.062 required that registered sex offenders who visit municipalities or counties
outside the municipality or county where they are required to be registered also register in
the other municipalities or counties. Id. Johnson also challenges former article 62.05(b)
of the Texas Code of Criminal Procedure, redesignated in 2005 as article 62.057, which
addresses reporting requirements related to changes in the employment or health status of
registered sex offenders. See Act of May 26, 1999, 76th Leg., R.S., ch. 444, § 6, 1999
Tex. Gen. Laws 2824, 2826, amended by Act of May 26, 2005, 79th Leg., R.S., ch. 1008,
§ 1.01, art. 62.057, 2005 Tex. Gen. Laws 3385, 3401 (current version at Tex. Code Crim.
Proc. Ann. art. 62.057 (West Supp. 2012).
Johnson contends that certain other 2005 amendments to chapter 62 of the Texas
Code of Criminal Procedure violate the Texas Constitution’s ex post facto provision. See
Tex. Code. Crim. Proc. Ann. arts. 62.061, 62.062, 62.152, 62.153 (West 2006). 2 A
savings provision found in the enacting legislation for the 2005 amendments continues
the prior law to the extent that the changes in law made by the act “change the elements
2
Johnson groups article 62.062 with his discussion of the 1999 amendments to the
sex offender registration statute, but the Legislature enacted article 62.062 in 2005. See
Act of May 26, 2005, 79th Leg., R.S., ch.1008, § 1.01, art. 62.062, 2005 Tex. Gen. Laws
3385, 3405.
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of or punishment for conduct constituting a violation of Chapter 62[.]” See Act of May
26, 2005, 79th Leg., R.S., ch. 1008, § 4.01, 2005 Tex. Gen. Laws 3385, 3422. Article
62.061 requires a person who registers to comply with a request for a DNA specimen;
article 62.062 prevents local law enforcement from publishing notices regarding
registering persons subject to delinquent conduct adjudications; article 62.152 applies to
persons with reportable convictions who reside in another state but work or attend school
in this state; and article 62.153 requires a person with a reportable conviction who is
employed or attends an institution of higher education in Texas to report to a campus
authority. See Tex. Code. Crim. Proc. Ann. arts. 62.061, 62.062, 62.152, 62.153.
However, unlike Rodriguez, Johnson does not claim that he was not subject to registering
in 1998 after being convicted of aggravated sexual assault. See Act of June 1, 1997, ch.
668, § 1, 75th Leg., R.S., 1997 Tex. Gen. Laws 2253, 2254.
Significantly, Johnson was not prosecuted for violating the provisions of the
statute that he has cited in his brief. Instead, Johnson was prosecuted for failing to
register as a sex offender within seven days of arriving in Montgomery County, Texas—
that requirement existed in the 1998 version of the sex offender registration statute when
Johnson was convicted of aggravated sexual assault, a reportable offense. See Tex. Code
Crim. Proc. Ann. art. 62.051(a)(1); see also Act of June 1, 1997, 75th Leg., R.S., ch. 668,
§ 1, art. 62.02(a), 1997 Tex. Gen. Laws 2253, 2254. Because the various requirements
about which Johnson complains on appeal were not applied to him, any potential ex post
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facto effect of these provisions on him are too speculative and attenuated to implicate
article I, section 16 of the Texas Constitution. See Johnson, 930 S.W.2d at 591.
Johnson additionally complains that the amendment to article 62.101 extended the
period during which he is required to register. See Act of May 26, 2005, 79th Leg., R.S.,
ch. 1008, § 1.01, art. 62.101, 2005 Tex. Gen. Laws 3385, 3405 (amended 2011).
However, the law in effect in 1998, former article 62.12, also required Johnson to register
for the remainder of his life. Former article 62.12 provided: “The duty to register for a
person with a reportable conviction or adjudication for a sexually violent offense . . . ends
when the person dies.” See Act of June 1, 1997, 75th Leg., R.S., ch. 668, § 1, art. 62.12,
1997 Tex. Gen. Laws 2253, 2261 (amended 1999, 2003, renumbered 2005) (current
version at Tex. Code. Crim. Proc. Ann. art. 62.101 (West Supp. 2012)). We conclude that
article 62.101 is not punitive in nature, as it is not more severe than the version applicable
to Johnson following his 1998 conviction. See Grimes, 807 S.W.2d at 587.
Given the guidance of the Court of Criminal Appeals in Rodriguez, we are not
persuaded that the 1999 and 2005 amendments can be properly classified as punitive,
even though the failure of a person required to register results in a criminal penalty. See
Tex. Code Crim. Proc. Ann. art. 62.102 (West 2006); Rodriguez, 93 S.W.3d at 79(concluding that the intent of the 1997 amendment to the Texas’s sex-offender
registration statute was civil and remedial in nature). The Legislature enacted the sex
offender registration statute with the goal of promoting public safety. Rodriguez, 93
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S.W.3d at 68-69. Johnson has not identified how the amendments at issue have increased
his punishment. See id. at 69; see also White v. State, 988 S.W.2d 277, 278-79 (Tex.
App.—Texarkana 1999, no pet.) (holding that because registration is not punitive, the
version of the statute in effect on date defendant was accused of failing to report applied).
“In the absence of contrary evidence, we will presume that the legislature acted in a
constitutionally sound fashion.” Rodriguez, 93 S.W.3d at 69.
Johnson was convicted and sentenced for failing to register as a sex offender in
2010, not for committing a sexual assault in 1998. A failure to report if the person had a
reportable offense under chapter 62 was criminal in 1998, when Johnson acquired a
reportable conviction, and criminal in 2010, when Johnson failed to register with the
Sheriff as a sex offender in Montgomery County, as required by chapter 62. See Tex.
Code Crim. Proc. Ann. art. 62.102; see also Act of June 1, 1997, 75th Leg., R.S., ch. 668,
§ 1, art. 62.10, 1997 Tex. Gen. Laws 2253, 2260. In 2010, Johnson’s offense was a third
degree felony. See Tex. Code Crim. Proc. Ann. art. 62.102(b)(2); see also Rodriguez, 93
S.W.3d at 79 (holding that no ex post facto violation occurred, where the challenged
amendments to the sex offender registration statute were civil and remedial in nature, and
that the charged conduct was a criminal offense on the date the defendant failed to
register). Because Johnson has failed to show the amendments at issue violate article I,
section 16 of the Texas Constitution, we overrule Johnson’s sole issue. We affirm the
trial court’s judgment.
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AFFIRMED.
________________________________
HOLLIS HORTON
Justice
Submitted on November 6, 2012
Opinion Delivered January 16, 2013
Do Not Publish
Before McKeithen, C.J., Gaultney and Horton, JJ.
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