Mann, Michael Flavil v. State

Affirmed and Memorandum Opinion filed October 4, 2005

Affirmed and Memorandum Opinion filed October 4, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-00407-CR

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MICHAEL FLAVIL MANN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 351st District Court

Harris County, Texas

Trial Court Cause No. 983,524

M E M O R A N D U M   O P I N I O N

Appellant Michael Flavil Mann challenges his conviction and life sentence for failure to comply with sex offender registration requirements.  Appellant alleges that the registration requirement for a person convicted of sexual assault before the adoption of the Sex Offender Registration Program is an ex post facto law in violation of the United States and Texas constitutions. We affirm.

I.  Factual Background

Appellant was convicted of aggravated sexual assault in 1987. In April 2004, he was charged by indictment with failure to comply with the Texas Sex Offender Registration Program. Appellant pleaded Anot guilty.@  A jury found appellant guilty as charged, and the trial court sentenced him to life imprisonment in the Texas Department of Criminal Justice, Institutional Division.

II.  Issues Presented

In his sole issue on appeal, appellant contends that requiring him to register as a sex offender for a crime committed before the adoption of the Sex Offender Registration Program is unconstitutional because it is an ex post facto law in violation of Article I, Section 10 of the United States Constitution and Article I, Section 16 of the Texas Constitution.

III. Analysis

The Sex Offender Registration Program contained in chapter 62 of the Texas Code of Criminal Procedure requires a person convicted of an enumerated offense, among other things, to register with local law enforcement authority in any municipality in which the person expects to reside for longer than seven days.  See Tex. Crim. Proc. Ann. art. 62.02(a) (Vernon Supp. 2004).  The Sex Offender Registration Program places a duty to register on a Aperson who has a reportable conviction or adjudication.@  Id. art. 62.02.  Article 62.01 specifies that a conviction for a violation of Tex. Penal Code Ann. ' 22.021 (Vernon Supp. 2004) (aggravated sexual assault) is a reportable conviction.  See id. art. 62.01(5)(A).  The registration program applies to reportable convictions occurring on or after September 1, 1970.  See id. art. 62.11 (Vernon Supp. 2004).  An individual commits an offense under the Sex Offender Registration Program if the person is required to register and fails to comply with any of the program=s requirements.  See id. art. 62.10.

Appellant, having been convicted of aggravated sexual assault in 1987, is subject to the requirements of the Sex Offender Registration Program.  Although appellant=s conviction predates the enactment of the Sex Offender Registration Program, the remedial nature of the statute does not constitute punishment and thus does not offend either the United States Constitution or the Texas Constitution.

The United States Constitution contains an absolute prohibition against ex post facto laws.  U.S. Const. art. I, ' 10; Calder v. Bull, 3 U.S. (3 Dall.) 386, 396B97, 1 L. Ed. 648, 657B59 (1798).^[1]  Our state constitution also prohibits ex post facto laws.^[2]  An ex post facto law is one that: (1) punishes as a crime conduct previously committed, which was innocent when done; (2) makes more burdensome the punishment of a crime after its commission; (3) deprives one charged with a crime of any defense available at the time when the act was committed; or (4) alters the legal rules of evidence, and receives less or different testimony, than the law required at the time of the commission of the offense in order to convict the offender. Carmell v. Texas, 529 U.S. 513, 522B25, 120 S. Ct. 1620, 1627B29, 146 L. Ed. 2d 577 (2000); Collins v. Youngblood, 497 U.S. 37, 42, 110 S. Ct. 2715, 2719, 111 L. Ed. 2d 30 (1990); Ex Parte Davis, 947 S.W.2d 216, 219B20 (Tex. Crim. App. 1996).  This court has considered this issue and found that the statute is regulatory and does not violate the prohibition against ex post facto laws.  Dean v. State, 60 S.W.3d 217, 219B20 (Tex. App.CHouston [14th Dist.] 2001, pet. ref=d).  Legislatures cannot retroactively alter the definition of crimes or increase the punishment for criminal acts.  Collins, 497 U. S. at 43, 110 S. Ct. at 2719.  A statute violates the ex post facto prohibition if it retroactively increases the punishment for criminal acts.  California Dept. Of Corrections v. Morales, 514 U.S. 499, 508, 115 S. Ct. 1597, 1602, 131 L. Ed.2d 588 (1995).  Thus, the key inquiry is whether the Sex Offender Registration Program applies a Anew punitive measure to a crime already consummated.@  Morales, 514 U. S. at 505, 115 S. Ct. at 1601 (citation omitted); Dean, 60 S.W.3d at 225 (stating that Athe Act and its 1999 amendments are not excessive in relation to its stated non-punitive purposes . . . the Act is essentially regulatory.  Accordingly, the Act and 1999 amendments do not violate the ex post facto clause in the United States Constitution@); Lantz v. State, No. 14-02-00726-CR & 14-02-00787-CR, 2003 WL 21282786, at *2 (Tex. App.CHouston [14th Dist.] June 5, 2003, pet. ref=d) (not designated for publication) (holding SORP does not violate ex post facto clause); see also Coronado v. State, 148 S.W.3d 607, 611 (Tex. App.CHouston [14th Dist.] 2004, no pet.) (stating that A[t]he Texas Court of Criminal Appeals and this court have held that the Sex Offender Registration Program is civil and remedial in natureBnot punitive; thus, its retroactive application does not violate the ex post facto clause@).  Furthermore, the United States Supreme Court has recognized that, Awhether a sanction constitutes punishment is not determined from the defendant=s perspective, as even remedial sanctions carry the sting of punishments.@  See Dept. of Revenue of Mont. v. Kurth Ranch, 511 U.S. 767, 777 n.14, 114 S. Ct.1937, 1945 n. 14, 128 L. Ed. 2d 767 (1994) (citing United States ex. Rel. Marcus v. Hess, 317 U. S. 537, 551, 63 S. Ct. 379, 387, 87 L.Ed 443 (1943)).  As this court reasoned in Dean, the registration requirement was intended to be remedial in nature and not punitive.  See id. at 221B22.  Because the Sex Offender Registration Program was enacted for the advancement of the public welfare, it does not impose punishment for constitutional purposes and does not constitute an ex post facto law.  Id. at 225; Rodriguez v. State, 45 S.W.3d 685, 689 (Tex. App.CFort Worth 2001), aff=d, 93 S.W.3d 60 (Tex. Crim. App. 2002); Saldana v. State, 33 S.W.3d 70, 71B72 (Tex. App.CCorpus Christi 2000, pet. ref=d).  For this reason, this court has rejected ex post facto challenges under both the United States and Texas Constitutions.  Coronado v. State, 148 S.W.3d at 608.  We find no merit in appellant=s ex post facto argument, and we overrule his sole issue on appeal.  Accordingly, we affirm the trial court=s judgment.

/s/      Kem Thompson Frost

Justice

Judgment rendered and Memorandum Opinion filed October 4, 2005.

Panel consists of Justices Hudson, Frost and Seymore.

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

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^[1]  Article I, section 10 of the United States Constitution provides, ANo State shall . . . pass any Bill of Attainder, ex post facto Law . . .@

^[2]  The Texas Constitution provides that: ANo . . . ex post facto law, retroactive law, or any law impairing the obligation of contracts, shall be made.@ Tex. Const. art. I, ' 16.