No. 05-06-01254-CR
Opinion Filed June 16, 2008. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 219th Judicial District Court Collin County, Texas, Trial Court Cause No. 219-80778-06.
Before Justices MORRIS, FITZGERALD, and LANG.
DOUGLAS S. LANG, JUSTICE.
After a jury trial, appellant was convicted of failure to register as a sex offender. The trial court assessed punishment at two and one-half years' confinement. In two issues, appellant argues (1) the trial court's judgment is void because the trial court assessed a sentence not authorized by statute; and (2) the judgment incorrectly reflects that the jury assessed appellant's punishment and should be reformed to show that the trial court assessed punishment. We modify the trial court's judgment and affirm the judgment as modified.
I. FACTUAL AND PROCEDURAL BACKGROUND
On July 14, 1999, appellant pleaded guilty to four charges of third degree indecency with a child under Texas Penal Code 21.11(a)(2) and was sentenced to five years' confinement for each conviction. Based on these convictions, he was required to register as a sex offender and report in person to the local law enforcement authority at least seven days before changing his residence. On January 4, 2006, Frisco police officers working code enforcement made contact with appellant at a residence. Officer Glenda Covington recognized appellant because she had been one of the investigating officers in his previous offenses. Officer Covington knew appellant was required to register as a sex offender and the address where he was contacted was not his registered address. Appellant told the officers that he had moved into the residence and changed his address with the state. As proof, appellant showed the officers his driver's license, which had been changed on December 11, 2005 to reflect the new address. Appellant reported the new address to the Frisco Police Department on January 4, 2006. At trial, appellant and several family members testified that appellant had leased the residence on or about December 4, 2005, but had spent several weeks cleaning it before moving in during the last week of December. A jury convicted appellant of failure to register as a sex offender, as a third degree felony, for failing to provide seven days' advance notice to local law enforcement of his move to a new address. The trial court sentenced him to two and one-half years confinement. This appeal followed. II. THE SENTENCE
In his first issue, appellant asserts the trial court's judgment is void because the trial court assessed a sentence not authorized by statute. The State argues the offense was a third degree felony and appellant's sentence falls within the statutory range. A. Applicable Law
The Texas Court of Criminal Appeals has uniformly held that sentences not authorized by law are void. Heath v. State, 817 S.W.2d 335, 339 (Tex.Crim.App. 1991) (en banc) (op. on reh'g) (citing court of criminal appeals opinions spanning a century), overruled in part on other grounds by Ex parte Williams, 65 S.W.3d 656 (Tex.Crim.App. 2001); see also State v. Lewis, 918 S.W.2d 557, 559 (Tex.App.-Dallas 1996, no pet.) ("If a punishment is not authorized by law, the sentence is void."). A sentence that exceeds the maximum punishment range is unauthorized by law and is thus void. Ex Parte Rich, 194 S.W.3d 508, 512 (Tex.Crim.App. 2006); Hern v. State, 892 S.W.2d 894, 896 (Tex.Crim.App. 1994) (en banc) (sentence exceeding maximum allowed for third degree felony, of which appellant was convicted, was void). Failure to comply with sex offender registration requirements is punishable as a third degree felony if the defendant is subject to the lifetime registration requirements. Tex. Code Crim. Proc. Ann. art. 62.102(b)(2) (Vernon 2006). However, if the person is subject to only a ten year reporting requirement, the offense is a state jail felony. Tex. Code Crim. Proc. Ann. art. 62.102(b)(1) (Vernon 2006). One of the situations in which a sex offender is subject to lifetime registration requirements is when the person has a reportable conviction for an offense under Texas Penal Code section 21.11(a)(2), and, if before or after the person is convicted or adjudicated for the offense under section 21.11(a)(2), the person receives or has received another reportable conviction or adjudication, other than an adjudication of delinquent conduct, for an offense or conduct that requires registration. Tex. Code Crim. Proc. Ann. art. 62.101(a) (Vernon 2006). A conviction for indecency with a child under section 21.11 of the penal code is a reportable conviction for which registration is required. Tex. Code Crim. Proc. Ann. art. 62.001(5)(A), 62.051 (Vernon 2006 Supp. 2007). The plain language of a statute can be used to determine legislative intent as to whether the State is required to prove certain convictions occurred in sequential order or arose from separate transactions. See Fuller v. State, 194 S.W.3d 52, 53-54 (Tex.App.-Fort Worth 2006, pet. ref'd); Gibson v. State, 995 S.W.2d 693, 696-97 (Tex.Crim.App. 1999) (contrasting specific language in habitual offender provisions requiring sequential convictions and concluding that the DWI enhancement statute did not require State to prove prior convictions occurred sequentially). In Fuller, the Fort Worth Court of Appeals concluded when the statute clearly and unambiguously provided that any "second conviction" for indecent exposure was a reportable conviction, "nothing in the statute require[d] that when two or more convictions occur on the same day . . . they must occur in sequential order for one of the convictions to qualify as the second conviction." Fuller, 194 S.W.3d at 53-54. B. Application of Law to Facts
Appellant asserts his conviction for failure to register as a sex offender should not be a third degree felony because, he argues, he was not subject to a lifetime reporting requirement. He bases this assertion on the fact that his indecency with a child convictions under section 21.11 all occurred on one day, so he argues he has no reportable conviction "before or after" his conviction under section 21.11(a)(2). See Tex. Code Crim. Proc. Ann. art. 62.101(a). According to appellant, he is subject to a ten year registration requirement, rather than the lifetime reporting requirement, and the conviction should only be a state jail felony. See Tex. Code Crim. Proc. Ann. art. 62.102(b)(1). Therefore, appellant argues, his sentence is not authorized by law because it exceeds the maximum sentence allowed for a state jail felony. In response, the State argues appellant was subject to the lifetime reporting requirements under article 62.101(a) because the statute only requires that a defendant have more than one reportable conviction in addition to the conviction for indecency with a child by exposure, not that the convictions occurred sequentially or on different dates. Appellant was convicted on the same day of four counts of indecency with a child by exposure. Indecency with a child by exposure is a "reportable conviction." See Tex. Code Crim. Proc. Ann. art. 62.001(5)(A). Appellant's argument on appeal centers on the interpretation of the phrase "before or after the person is convicted" in article 62.101(a)(3) in determining whether he was subject to a lifetime reporting requirement. According to appellant, the lifetime reporting requirements are only applicable when a person has "multiple, sequential convictions" for indecency by exposure. However, there is no requirement in the plain language of the statute that the reportable convictions be sequential or fall on different days. See Tex. Code Crim. Proc. Ann. art. 62.101(a)(3); cf. Fuller v. State, 194 S.W.3d 52; Gibson, 995 S.W.2d at 696-97. The statute requires only that a person be convicted of another reportable offense "before or after" his conviction and does not require that the other conviction occur on a different day. See Tex. Code Crim. Proc. Ann. art. 62.101(a)(3); cf. Fuller, 194 S.W.3d at 53; Gibson, 995 S.W.2d at 696-97. Appellant is subject to the lifetime reporting requirements based on his multiple convictions for indecency with a child under section 21.11(a)(2) of the penal code. See Tex. Code Crim. Proc. Ann. art. 62.101(a). Accordingly, appellant's conviction for failure to register as a sex offender is a third degree felony. See Tex. Code Crim. Proc. Ann. art. 62.102(b)(2). The punishment assessed by the trial court was two and one-half years confinement, which is within the statutory range for a third degree felony. See Tex. Penal Code Ann. § 12.34(a) (Vernon 2003). Therefore, we conclude the punishment assessed by the trial court for appellant's conviction for failure to register as a sex offender was authorized by law and is not void. See Heath, 817 S.W.2d at 339. We decide against appellant on his first issue. III. MODIFY JUDGMENT
In his second issue, appellant requests the judgment of the trial court be modified to reflect that the trial court assessed punishment, rather than the jury. The State concurs that the judgment should be modified to reflect that trial court assessed punishment. Further, the State requests that the judgment be modified to correct the date of sentencing to August 2, 2006, and to reflect that appellant was prosecuted under article 62.101 of the Texas Code of Criminal Procedure. "This court has the power to correct and reform the judgment of the court below to make the record speak the truth when it has the necessary data and information to do so, or make any appropriate order as the law and the nature of the case may require." Asberry v. State, 813 S.W.2d 526, 529-30 (Tex.App.-Dallas 1991, pet. ref'd) (reforming judgment on State's cross-point to add deadly weapon finding), modified on other grounds by Lockett v. State, 874 S.W.2d 810, 818 (Tex.App.-Dallas 1994, pet. ref'd); see also Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex.Crim.App. 1993) (en banc). We conclude the judgment should be modified to reflect that the trial court assessed punishment on August 2, 2006 and that appellant was prosecuted under article 62.101 of the Texas Code of Criminal Procedure. See Asberry, 813 S.W.3d at 529-20; Bigley, 865 S.W.2d at 27-28. We decide appellant's second issue in his favor and modify the judgment. IV. CONCLUSION
We MODIFY the judgment to reflect that the trial court assessed punishment on August 2, 2006 and that appellant was prosecuted under article 62.101 of the Texas Code of Criminal Procedure. We order the trial court to enter a new judgment reflecting these modifications. As modified, we AFFIRM the trial court's judgment.