Nos. 14-02-00726- CR 14-02-00787-CR
Opinion filed June 5, 2003. Do Not Publish — Tex.R.App.P. 47.2(b).
On Appeal from the 183rd District Court, Harris County, Texas, Trial Court Cause No. 872,032
Panel consists of Justices HUDSON, EDELMAN and DRAUGHN.
Senior Justice Joe L. Draughn sitting by assignment.
RICHARD H. EDELMAN, Justice.
Jack Ray Lantz appeals a conviction for failure to register as a sex offender on the grounds that the Texas sex offender registration statute (the "statute") violates due process and due course of law and constitutes ex post facto punishment under both the United States and Texas Constitutions. We affirm.
Appellant entered a negotiated guilty plea, and the trial court assessed punishment at one year of confinement.
See Tex. Code Crim. Proc. Ann. arts. 62.01-.13 (Vernon Supp. 2003).
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.
Due Process
Appellant's first and second issues challenge his conviction on the ground that the statute is unconstitutional on its face for vagueness under both the United States and Texas Constitutions 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. 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 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. 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, 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.