Opinion
06-21-00062-CR
02-11-2022
AUSTIN MICHAEL WADE, Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish
Submitted: December 21, 2021
On Appeal from the 402nd District Court Wood County, Texas Trial Court No. 24, 169-2020
Before Morriss, C.J., Stevens and Carter, [*] JJ.
MEMORANDUM OPINION
Josh R. Morriss, III Chief Justice
Based on his guilty plea, Austin Michael Wade stands convicted of the second-degree felony offense of sexual assault of a child, A.W., who was younger than seventeen years of age at the time of the offense. In connection with the conviction, Wade sought, but was denied, exemption from sex-offender registration requirements. He appeals from that denial. We dismiss this appeal because we are without jurisdiction to entertain it.
We refer to the victim by initials to protect her confidentiality. See Tex. R. App. P. 9.10(a)(3).
After receiving Wade's plea of guilty to the charged offense, the trial court deferred a finding of guilt until it could conduct a hearing on Wade's motion for an affirmative finding pursuant to Article 42.017 of the Texas Code of Criminal Procedure and on his petition for exemption from registration on the sex-offender registry list pursuant to Article 62.301 of the Texas Code of Criminal Procedure. The trial court made the desired affirmative finding under Article 42.017, but found that Wade did not further qualify, under Article 62.301, for the exemption he sought. That is the subject of this appeal.
Article 42.017 of the Texas Code of Criminal Procedure states,
In the trial of an offense under Section 21.11 or 22.011, Penal Code, the judge shall make an affirmative finding of fact and enter the affirmative finding in the judgment in the case if the judge determines that:
(1) at the time of the offense, the defendant was not more than four years older than the victim or intended victim and the victim or intended victim was at least 15 years of age; and
(2) the conviction is based solely on the ages of the defendant and the victim or intended victim of the offense.Tex. Code Crim. Proc. Ann. art. 42.017. On May 13, 2021, the trial court issued affirmative findings that, at the time of the offense, (1) Wade was not more than four years older than A.W., (2) A.W. was at least fifteen years old, (3) the conviction was based solely on Wade's and A.W.'s ages, (4) Wade was nineteen years old, and (5) A.W. was sixteen years old. The State does not dispute that Wade satisfied the requirements for eligibility to petition the court for exemption from sex-offender registration. Consequently, Wade's motion for an affirmative finding pursuant to Article 42.017 of the Texas Code of Criminal Procedure is not at issue in this appeal.
Under Article 62.301 of the Texas Code of Criminal Procedure, obtaining an affirmative finding under Article 42.017 is just one precondition to applying for the sex-registration exemption. Applying for exemption under Article 62.301 ultimately can lead to a hearing on the petition for exemption, at which the petitioner must receive four statutory findings of fact from the trial court:
(d) After the hearing on the petition described by Subsection (a), the court may issue an order exempting the person from registration under this chapter if it appears by a preponderance of the evidence that:
(1) the exemption does not threaten public safety;
(2) the person's conduct did not occur without the consent of the victim or intended victim as described by Section 22.011(b), Penal Code;
(3) the exemption is in the best interest of the victim or intended victim; and
(4) the exemption is in the best interest of justice.Tex. Code Crim. Proc. Ann. art. 62.301(d).At the hearing on Wade's petition for exemption, the trial court found that Wade did not meet the criteria set out in Article 62.301. Consequently, the court denied his petition for exemption. Wade appeals the trial court's ruling, arguing that the trial court abused its discretion when it denied his petition because, among other things, his conduct did not occur without A.W.'s consent. In response, the State maintains that the trial court did not abuse its discretion when it denied Wade's petition because there was sufficient evidence to support the court's ruling.
We must dismiss Wade's appeal for want of jurisdiction. A defendant's right to appeal is a substantive right determined only by the Texas Legislature. Bayless v. State, 91 S.W.3d 801, 805 (Tex. Crim. App. 2002) (defendant's right to appeal is "a statutorily created right"). The Texas Code of Criminal Procedure states, "A defendant in any criminal action has the right of appeal under the rules hereinafter prescribed." Tex. Code Crim. Proc. Ann. art. 44.02. Generally, a defendant's right to appeal is restricted to an appeal from a final judgment. State v. Sellers, 790 S.W.2d 316, 321 n.4 (Tex. Crim. App. 1990). "Appellate courts do not have jurisdiction over criminal appeals where that jurisdiction has not been expressly granted to them." Ex parte Burr, 139 S.W.3d 446, 447 (Tex. App-Dallas 2004, pet. ref d) (citing Apolinar v. State, 820 S.W.2d 792, 794 (Tex. Crim. App. 1991)). In other words, this Court has jurisdiction in a criminal case only when it is expressly provided by law. See Kelly v. State, 151 S.W.3d 683, 686-87 (Tex. App-Waco 2004, no pet.); Ex parte McGregor, 145 S.W.3d 824, 825 (Tex. App-Dallas 2004, no pet.). Nothing in the language of Article 62.301 provides the right to appeal from a trial court's ruling denying a defendant's petition for exemption made pursuant to Article 62.301 of the Texas Code of Criminal Procedure. Likewise, we have found no caselaw permitting such an appeal.
Article 42.01 defines "judgment" as "the written declaration of the court signed by the trial judge and entered of record showing the conviction or acquittal of the defendant." Tex. Code Crim. Proc. Ann. art. 42.01 (Supp.).
Interestingly, Article 62.357(b) of the Texas Code of Criminal Procedure, entitled "Appeal of Certain Orders," states,
A respondent may under Section 56.01, Family Code, appeal a juvenile court's order under Article 62.352(a) requiring registration in the same manner as the appeal of any other legal issue in the case. The standard of review in the appellate court is whether the juvenile court committed procedural error or abused its discretion in requiring registration.Tex. Code Crim. Proc. Ann. art. 62.357(b). No such language is included in Article 62.301, which expressly addresses young-adult offenders.
Similar to Article 62.301 of the Texas Code of Criminal Procedure, which addresses young-adult sex offenders, Article 62.352 addresses juvenile sex offenders and sex registry exemption. See Tex. Code Crim. Proc. Ann. art. 62.352(a).
Notably, "prior to its repeal, article 62.0105 permitted an adult offender to petition the court for an exemption from registration as a sex offender." Carden v. State, No. 04-10-0119- CR, 2011 WL 721461, at *3 (Tex. App-San Antonio Mar. 2, 2011, pet. ref d) (mem. op., not designated for publication) (citing Act of May 22, 2001, 77th Leg., R.S., ch. 1159, § 4, 2001 Tex. Gen. Laws 2619, 2620-21, repealed by Act of May 24, 2005, 79th Leg., R.S., ch. 1008, § 1.01, 2005 Tex. Gen. Laws 3385, 3391-92). Had the Texas Legislature intended adult offenders to have a right to appeal a district court's order denying a petition for exemption, it would have included such language in Article 62.301, or in some other statute addressing the subject-matter complained of in this case. It did not.
"Although unpublished opinions have no precedential value, we may take guidance from them 'as an aid in developing reasoning that may be employed.'" Rhymes v. State, 536 S.W.3d 85, 99 n.9 (Tex. App.-Texarkana 2017, pet. ref'd) (quoting Carrillo v. State, 98 S.W.3d 789, 794 (Tex. App.-Amarillo 2003, pet. ref'd)).
Accordingly, we dismiss Wade's appeal for want of jurisdiction.
[*]Jack Carter, Justice, Retired, Sitting by Assignment