holding sexual-offender-registration requirements did not offend due process because they are rationally related to governmental interest in protecting citizens from sexual offendersSummary of this case from Estes v. State
FROM THE DISTRICT COURT OF HAYS COUNTY, 428TH JUDICIAL DISTRICT
NO. CR-16-0133, HONORABLE WILLIAM R. HENRY, JUDGE PRESIDING MEMORANDUM OPINION
Douglas Doolittle was charged with failure to comply with the registration requirements under the Sex Offender Registration Program (the "Program"). See Tex. Code Crim. Proc. art. 62.102(a). In particular, the indictment alleged that Doolittle had been previously convicted of a reportable offense (lewd conduct with a minor) in another state and was required to register his new address when he moved to Hays County but that he "intentionally or knowingly fail[ed] to register a change of address with the local law enforcement authority in Hays County, not later than the seventh day after the changing of his address or new residence." See id. art. 62.055(a). Further, the indictment alleged that Doolittle had "previously been convicted" on two prior occasions "of Failure to Register as a Sex Offender" in Oregon and in Washington. See id. art. 62.102(c). Doolittle filed a motion arguing that the registration requirements of the Program violated his substantive due-process rights. The district court denied the motion. Following the district court's ruling, Doolittle entered into a plea-bargain agreement with the State in which Doolittle agreed to plead guilty to the offense as charged in the indictment and in which the State agreed to recommend a punishment of five years' imprisonment. See Tex. Penal Code § 12.33 (listing permissible punishment range for second-degree felonies). Ultimately, the district court accepted the terms of the plea-bargain agreement, found Doolittle guilty, sentenced him in accordance with the terms of the agreement, and certified that Doolittle had the right to appeal the ruling on his prior motion. On appeal, Doolittle argues that the district court erred by denying his motion and urges this Court to vacate the district court's judgment of conviction. Alternatively, Doolittle requests that this Court modify the terms of the judgment of conviction to reflect that he was convicted of a third-degree felony and not a second-degree felony. We will modify the district court's judgment of conviction and, as modified, affirm the judgment of conviction.
STANDARD OF REVIEW AND GOVERNING STATUTORY SCHEME
Appellate courts review the constitutionality of a criminal statute under a de novo standard of review. Modarresi v. State, 488 S.W.3d 455, 465 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (setting out standard for as-applied challenge). When presenting an as-applied challenge, a defendant "concedes the general constitutionality of the statute but asserts it is unconstitutional as applied to her particular facts and circumstances." Id. Moreover, the party seeking to challenge the statute has the burden of showing that the statute is unconstitutional. Rodriguez v. State, 93 S.W.3d 60, 69 (Tex. Crim. App. 2002).
As set out above, Doolittle was charged with failing to register as a sex offender as required by the provisions of the Program. See Tex. Code Crim. Proc. arts. 62.001-.408. The Program was enacted to promote public safety. See Rodriguez, 93 S.W.3d at 68-69. When discussing the public-safety concerns, one of our sister courts of appeals explained as follows:
The State provides proof that in enacting the current registration and notification plan, the legislature considered the unique threat sex offenders present to public safety, the high rate of recidivism among sex offenders, the low incidence of rehabilitation among sex offenders, and that sexual misconduct often begins as a juvenile. The State provides further proof that the legislature's goal in passing the registration and notification provisions was to advance public safety objectives by facilitating law enforcement's monitoring of sex offenders and by alerting members of the public who may be in an especially vulnerable situation to take appropriate precautions which could deter or prevent further crimes.In re M.A.H., 20 S.W.3d 860, 863 (Tex. App.—Fort Worth 2000, no pet.).
Under the Program, an individual "commits an offense if the person is required to register and fails to comply with any requirement" of the Program. See Tex. Code Crim. Proc. art. 62.102(a). Of significance here, the Program provides that "[i]f a person required to register changes address, the person shall, not later than the . . . seventh day after changing the address . . . report in person to the local law enforcement authority in the municipality or county in which the person's new residence is located and provide the authority with proof of identity and proof of residence." Id. art. 62.055(a). Moreover, the Program provides a list of reportable convictions, including convictions for indecency with a child or "a violation of the laws of another state" where the out-of-state offense contains "elements that are substantially similar to the elements of" a qualifying offense in Texas. Id. art. 62.001(5)(A), (H). In addition, the Program sets out offenses that qualify as sexually violent offenses, including indecency with a child by sexual contact and "an offense under the laws of another state" with "elements that are substantially similar to the elements of" a Texas offense qualifying as a sexually violent offense. Id. art. 62.001(6)(A), (E). Regarding the length of the registration requirement, the Program provides that "the duty to register for a person ends when the person dies if the person has a reportable conviction or adjudication . . . for . . . a sexually violent offense" and provides a less onerous registration requirement for other reportable convictions. See id. art. 62.101(a)(1), (b), (c). Furthermore, the Program explains that the offense of failing to register is elevated from a state-jail felony to a third-degree felony if the prior offense requires the defendant to register for life, see id. art. 62.102(b), and states that the punishment range for an offense "is increased to the punishment for the next highest degree of felony" if the individual has previously been convicted of an offense prohibited by the Program, id. art. 62.102(c).
Although the indictment does not list what state the other offense occurred in and does not list the elements of the prior offense, although the prior judgment was not included in the record, and although there is nothing in the record indicating that the Department of Public Safety (the "Department") made any determination regarding whether the prior offense "contains elements that are substantially similar to the elements of an offense under" Texas law requiring registration, see Tex. Code Crim. Proc. art. 62.003(a); see also Crabtree v. State, 389 S.W.3d 820, 832 (Tex. Crim. App. 2012) (explaining that "a [Department] substantial-similarity determination is an essential element of the offense of failure to comply with registration requirements"), Doolittle did not dispute below or on appeal that his prior conviction for lewd conduct is a qualifying offense requiring registration. Moreover, in one of its responsive filings in the underlying proceedings, the State asserted that the prior conviction occurred in Idaho, and Doolittle similarly agrees in his appellant's brief that his prior conviction was in Idaho and identifies the relevant statute. A comparison of the Idaho offense for lewd conduct with the Texas offense for indecency with a child by sexual contact shows that the two offenses have similar elements. Compare Tex. Penal Code § 21.11(a)(1), (c) (providing that person commits offense of indecency with child if person engages in sexual contact with child under "17 years of age . . . or causes the child to engage in sexual contact" and explaining that "'[s]exual contact' means . . . any touching . . . of the anus, breast, or any part of the genitals of a child" or "any touching of any part of the body of a child . . . with the anus, breast, or any part of the genitals of a person" "with the intent to arouse or gratify the sexual desire of any person"), with Idaho Code § 18-1508 (governing "[l]ewd conduct with minor child under sixteen" and specifying that person commits offense by performing "lewd or lascivious act or acts upon or with the body or any part or member thereof of a minor child . . . including . . . genital-genital contact, oral-genital contact, anal-genital contact, oral-anal contact, manual-anal contact, or manual-genital contact").
Although the Program lists the length of the registration requirement for several offenses, certain provisions of the Program also create a mechanism for early termination of registration requirements. See id. arts. 62.401-.408. In particular, as part of the mechanism for deregistration, the Council on Sex Offender Treatment (the "Council") is obligated to develop an individual-risk-assessment tool to predict the likelihood that an individual will engage in future criminal activity and the "continuing danger, if any, that the person poses to the community," id. art. 62.403(a), and "[a] person required to register . . . may file . . . a motion for early termination," id. art. 62.404(a). Further, the Council published a list of offenses for which deregistration is permissible. See Deregistration for Certain Sex Offenders Council on Sex Offender Treatment Update (Dec. 14, 2010), http://www.dshs.state.tx.us/csot/csot_dregupdate.doc. That list includes offenses for indecency with a child by sexual contact if the victim was between the ages of thirteen and seventeen years old but does not include indecency with a child by sexual contact for victims younger than thirteen years old. Id.
In his first issue on appeal, Doolittle contends that "the application of the sex offender registration program to [him] violated substantive due process where his" prior conviction occurred before "the program's enactment" and where the Program "imposes additional serious consequences of which he did not have notice."
As will be set out in more detail later, Doolittle asserts that his substantive due-process rights were violated, among other ways, by a lack of notice regarding the requirements of the Program and regarding failing to comply with those requirements. Generally speaking, arguments regarding notice are seen in the procedural due-process context. See, e.g., Ex parte Warren, 353 S.W.3d 490, 493 (Tex. Crim. App. 2011) (setting out procedural due-process rights, including right to notice, that must be complied with before "sex offender conditions may be imposed" on person as condition of community supervision when person "has not been convicted of a sex offense"); Floyd v. State, 575 S.W.2d 21, 24 (Tex. Crim. App. 1978) (holding that defendant "was not deprived of procedural due process" where he "had sufficient notice of the type of conduct proscribed by the statute"). However, inherent within Doolittle's arguments is his assertion that some of the requirements of the Program violate his substantive due-process rights because he, unlike defendants convicted of other sexual offenses, cannot seek relief from his life-long obligation to register as a sex offender and because he cannot challenge the determination that he is a dangerous offender. When confronted with similar complaints in a procedural due-process context, the Supreme Court and the court of criminal appeals determined that no procedural due-process rights were violated by the registration statutes at issue in those cases because the issue of current dangerousness was irrelevant to the statutory schemes and because there is no right to establish facts that are not relevant. See Connecticut Dep't of Pub. Safety v. Doe, 538 U.S. 1, 7-8 (2003); Exparte Robinson, 116 S.W.3d 794, 797 (Tex. Crim. App. 2003). However, both courts clearly pointed out that their holdings were limited to the procedural due-process challenges before them and that the defendants limited their arguments to procedural due process alone and did not present any substantive due-process arguments. See Doe, 538 U.S. at 7-8; Ex parte Robinson, 116 S.W.3d at 797. In fact, the Supreme Court stated that "[s]uch claims 'must ultimately be analyzed' in terms of substantive, not procedural, due process" and that a defendant could still potentially "show that that substantive rule of law is defective." See Doe, 538 U.S. at 7, 8 (quoting Michael H. v. Gerald D., 491 U.S. 110, 121 (1989) (plurality opinion)). Accordingly, in this appeal, we will address Doolittle's claims as substantive due-process ones. See Ex parte Chamberlain, 306 S.W.3d 328, 337 (Tex. App.—Fort Worth 2009) (noting prior rulings by Supreme Court and court of criminal appeals on procedural due-process grounds and then addressing substantive due-process claims regarding Program), vacated on other grounds, 335 S.W.3d 198 (Tex. Crim. App. 2011).
Level of Judicial Scrutiny
As an initial matter, we note that the parties disagree regarding what level of judicial scrutiny should be applied to the due-process challenge at issue. Cf. Schlittler v. State, 488 S.W.3d 306, 315 (Tex. Crim. App. 2016) (determining what standard of review applied before addressing substantive-due-process complaint). "The Due Process Clause guarantees more than fair process, and the 'liberty' it protects includes more than the absence of physical restraint." Washington v. Glucksberg, 521 U.S. 702, 719 (1997). "The Clause also provides heightened protection against government interference with certain fundamental rights and liberty interests." Id. at 720. If "a fundamental right or liberty interest" is involved, strict scrutiny is applied when determining if a law impinges on a substantive due-process right. Schlittler, 488 S.W.3d at 313. Under that standard, courts must determine whether "the infringement is narrowly tailored to serve a compelling state interest." Id. (quoting Glucksberg, 521 U.S. at 721). "On the other hand, a statute that infringes upon a non-fundamental right must merely meet the standard of 'rationally advancing some legitimate governmental purpose[.]'" Id. (quoting Reno v. Flores, 507 U.S. 292, 306 (1993)).
An individual challenging a criminal statute must "shoulder the burden to establish that [the statute] . . . is unconstitutional." Luquis v. State, 72 S.W.3d 355, 365 (Tex. Crim. App. 2002). Similarly, "one who seeks to challenge a statute on the basis that it infringes upon a fundamental liberty interest bears the burden of demonstrating, at the outset, that he has a constitutionally protected liberty interest at stake." Schlittler, 488 S.W.3d at 313-14; see also Glucksberg, 521 U.S. at 721 (explaining that "substantive-due-process cases" require "a 'careful description' of the asserted fundamental liberty interest" (quoting Flores, 507 U.S. at 302)).
When asserting that fundamental rights are being infringed, Doolittle notes that because his prior conviction is "classified as a 'sexually violent offense,'" see Tex. Code Crim. Proc. art. 62.001(6)(A), (E), he is "required to register for the rest of his life" under Texas law, see id. art. 62.101(a)(1), and is prohibited from challenging the presumption that he continues to pose a danger to society. Further, Doolittle contends that the Program had not been promulgated at the time of his prior conviction for lewd conduct but that the statutes governing the Program were "written to apply retroactively to all reportable convictions committed after 1970." In light of the assertions above, Doolittle argues that his "[f]undamental [r]ight to [n]otice" has been violated because he was not informed that his prior conviction would result in the later requirement that he register as a sex offender in Texas and be subject to the consequences listed above. Relatedly, Doolittle seems to assert that his reputation has been injured because he has been "permanently labeled as a dangerous person incapable of rehabilitation" and "as sexually violent." See Ex parte Chamberlain, 306 S.W.3d 328, 334 (Tex. App.—Fort Worth 2009) (construing argument regarding lifetime registration requirement damaging defendant as argument "that his reputation constitutes a cognizable liberty interest" for substantive due-process purposes), vacated on other grounds, 335 S.W.3d 198 (Tex. Crim. App. 2011). Finally, Doolittle insists that his "substantive right not to register" as a sex offender has been violated.
In his brief, Doolittle suggests that his due-course-of-law rights were also violated under the Texas Constitution. See Tex. Const. art. I, § 19. Although Doolittle asserts that the Texas Constitution provides greater protection than the federal Due Process Clause and refers to a civil case as support for that proposition, see In re J.W.T., 872 S.W.2d 189, 197 & n.23 (Tex. 1994) (noting that "Texas due course of law guarantee . . . has independent vitality, separate and distinct from" Due Process clause and quoting language from Supreme Court indicating that "'the Texas [due course] constitutional provision is different from, and arguably significantly broader than'" Due Process Clause (quoting City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 293 (1982))), the cases primarily relied on by Doolittle in his brief are federal cases discussing due-process rights, see, e.g., Lambert v. California, 355 U.S. 225, 228 (1957) (discussing "concept of due process"), and Doolittle does not provide a separate analysis under the due-course-of-law provision. Moreover, appellate courts have generally indicated that, at least in some contexts, the protections afforded by the due-course-of-law provision are the same as those guaranteed by the Due Process Clause. See Jones v. State, 437 S.W.3d 536, 540 (Tex. App.—Texarkana 2014, pet. ref'd) (collecting cases holding that "the Due Course of Law Clause [of the Texas Constitution] provides no greater protection than the Due Process Clause"). Accordingly, in the absence of any demonstration by Doolittle of any material difference, we will "apply essentially the same standards in assessing [the] due course of law challenges . . . and [the] due process challenges." See Jordan v. State, 56 S.W.3d 326, 331 (Tex. App.—Houston [1st Dist.] 2001, pet. ref'd) (recognizing that standards are same and noting that similar treatment is particularly warranted when "challenger's briefing . . . presumes the same analysis applies"); see also Farirayi v. State, No. 03-13-00371-CR, 2015 WL 3932409, at *2 n.2 (Tex. App.—Austin June 23, 2015, pet. ref'd) (mem. op., not designated for publication) (limiting analysis to federal standard even though defendant cited due-course-of-law provision because defendant did "not provide separate analysis").
Rights are said to be "fundamental" if they are "'deeply rooted in this Nation's history and tradition'" and are "'implicit in the concept of ordered liberty,' such that 'neither liberty nor justice would exist if they were sacrificed.'" Glucksberg, 521 U.S. at 720-21 (quoting Moore v. City of E. Cleveland, 431 U.S. 494, 503 (1977) (plurality op.) and Palko v. Connecticut, 302 U.S. 319, 325, 326 (1937), overruled on other grounds by Benton v. Maryland, 395 U.S. 784 (1969)). The United States Supreme Court has previously held that fundamental rights include the rights contained in the Bill of Rights, the right to marry, the right to have children, the right "to direct the education and upbringing of one's children," the right "to marital privacy," the right "to use contraception," the right "to bodily integrity," and the right to have an abortion. Id. at 720. But beyond these parameters, courts have "been reluctant to expand the concept of substantive due process because guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended," Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992), and because "extending constitutional protection to an asserted right or liberty interest" effectively places "the matter outside the arena of public debate and legislative action," Glucksberg, 521 U.S. at 720.
In light of the preceding and in the absence of any authority to the contrary, we conclude that Doolittle has not identified any fundamental rights "'deeply rooted in history and tradition."' Id. at 720-21 (quoting Moore, 431 U.S. at 503); see Ex parte Chamberlain, 306 S.W.3d at 334 (declining "to recognize" "that a sex offender possesses a fundamental right or liberty interest in his reputation"). Accordingly, we conclude that in resolving Doolittle's issue on appeal, we must apply a rational-basis standard.
Due Process Violation
Having determined what standard applies, we now turn to Doolittle's arguments regarding the alleged substantive due-process violations. When presenting his claims that his due-process rights were violated, Doolittle contends that one of the tenets of "justice and fair play is that an individual receive notice of the conduct that the government has made unlawful." See Carmell v. Texas, 529 U.S. 513, 533 (2000) (stating in context of ex-post-facto analysis that "[t]here is plainly a fundamental fairness interest, even apart from any claim of reliance or notice, in having the government abide by the rules of law it establishes to govern the circumstances under which it can deprive a person of his or her liberty or life"); Lambert v. California, 355 U.S. 225, 228 (1957) (explaining that "[e]ngrained in our concept of due process is the requirement of notice"). In light of the preceding, Doolittle contends that the "fundamental notice requirement . . . extends, not only to the conduct that has been deemed unlawful, but also . . . to the consequences of that conduct" and that the government has "the burden of proving complete notice of those consequences."
As support for these contentions, Doolittle cites various federal cases, but we do not believe any of those cases stand for the proposition asserted by Doolittle that he was somehow provided insufficient warning of the potential future consequences for his conviction for lewd conduct in another state. See, e.g., South Dakota v. Neville, 459 U.S. 553, 565 (1983) (determining that due-process rights were not violated when evidence of refusal to take breath test was admitted "even though respondent was not specifically warned that his refusal could be used against him at trial"); Doyle v. Ohio, 426 U.S. 610, 611, 618 (1976) (determining that defendant's due-process rights were violated when defendant was cross-examined "about his failure to" tell "exculpatory story . . . after receiving Miranda warnings at the time of his arrest" and stating that "while it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings" (internal footnote omitted)); United States v. Harrington, 749 F.3d 825, 827-29 (9th Cir. 2014) (concluding that "[it] was fundamentally unfair to convict" defendant of federal offense of refusing to provide breath sample when defendant was incorrectly read warning under California law that refusal would only result in its own punishment if defendant was later convicted of driving while intoxicated because federal law makes refusal punishable regardless of whether defendant is ultimately convicted of driving while intoxicated).
In addition, Doolittle urges that after his conviction for lewd conduct, the Texas "Legislature subsequently imposed, and thus failed to notify him of, several additional serious and burdensome legal consequences of his actions." Alternatively, Doolittle contends that he was not notified of possible future consequences when he entered a guilty plea for the prior offense. When presenting these notice claims, Doolitle contends that he is not eligible to take advantage of the deregistration provisions of the Program because the victim from the prior offense was seven years old and because he is, therefore, subject to the registration requirement for life. Building on the foregoing, Doolittle urges that the intervening changes in Texas law resulted in "the imposition of two irrebuttable presumptions or classifications: that he would be a danger to society for the rest of his life . . . and that his [prior] offense," which he claims "did not involve violence, would be considered a violent offense for the rest of his life." See Tex. Code Crim. Proc. arts. 62.001(5)(A), (H), (6)(A), (E), .101(a)(1). Moreover, Doolittle asserts that he is subject to those presumptions "without any individualized assessment of whether he does, in fact, present a danger to society" and without an opportunity to show "his lack of dangerousness" or to show that his prior offense "did not involve violence" even though the State will conduct individual risk assessments for individuals convicted of offenses that are eligible for deregistration. See Tex. Code Crim. Proc. art. 62.403 (authorizing risk-assessment evaluation). Finally, he argues that the retroactive requirements of the Program deprived him "of his vested, substantive right not to register—a right enjoyed by all other Texans to whom the presumption has not been applied" and that the imposition of the consequences discussed above "is fundamentally unfair." See U.S. Const. art. I, § 10 (containing federal prohibition on ex post facto laws); Tex. Const. art. I, § 16 (prohibiting application of retroactive laws); see also Rogers v. Tennessee, 532 U.S. 451, 460 (2001) (observing "that the Due Process and Ex Post Facto Clauses safeguard common interests—in particular, the interests in fundamental fairness (through notice and fair warning) and the prevention of the arbitrary and vindictive use of the laws"); Landgraf v. USI Film Prods., 511 U.S. 244, 266 (1994) (stating that in addition to "Ex Post Facto Clause," "[t]he Due Process Clause also protects the interests in fair notice and repose that may be compromised by retroactive legislation").
On appeal, Doolittle points to various federal cases discussing irrebuttable presumptions not involving the unique societal concerns regarding sexual offenses and not involving future consequences stemming from a conviction for a criminal offense. See, e.g., Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 634, 647, 648 (1974) (determining that rules adopted by school board requiring "every pregnant school teacher to take maternity leave without pay . . . five months before the expected birth of her child" "cannot pass muster under the Due Process Clause . . . because they employ irrebuttable presumption that" "all pregnant women are unfit to teach past the fourth or fifth month of pregnancy" and "unduly penalize a female teacher for deciding to bear a child"); Vlandis v. Kline, 412 U.S. 441, 453 (1973) (holding "that a permanent irrebuttable presumption of nonresidence . . . is violative of the Due Process Clause because it provides no opportunity for students who applied from out of State to demonstrate that they have become bona fide Connecticut residents").
When discussing his due-process arguments, Doolittle also contends that allowing some but not all sex offenders to seek relief from the registration obligations is an equal-protection violation. As support for this assertion, Doolittle only cites the Equal Protection Clauses in the federal and Texas Constitutions. See U.S. Const. amend. XIV; Tex. Const. art. I , § 3; see also Tex. R. App. P. 38.1(i) (providing that appellant's brief must contain "appropriate citations to authorities"); Rodriguez v. State, 329 S.W.3d 74, 81 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (explaining that failure to cite authority for appellate issue can result in waiver). Moreover, Doolittle did not present an equal-protection challenge in his motion that serves as the basis for this appeal. See Tex. R. App. P. 33.1(a) (explaining that to preserve error for appeal, record must show that complaint was made to trial court and that trial court ruled on request or refused to rule and that "complaining party objected to the refusal"); Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002) (providing that appellate issue must comport with specific objection made at trial). In any event, for the reasons set out more thoroughly later in the opinion, the distinction rationally advances a legitimate governmental purpose. See Schlittler v. State, 488 S.W.3d 306, 316, 317 (Tex. Crim. App. 2016) (explaining that "sex offenders do not constitute a protected class for purposes of an equal-protection analysis" and concluding that strict-scrutiny did not apply).
Doolittle also contends that his substantive due-process rights were violated when he was not provided notice of the possibility of future registration requirements because the governing statutes make "the otherwise innocent conduct of failing to register . . . a felony" "unlike [for] citizens to whom the foregoing classifications have not been applied." As support for this proposition, Doolittle principally relies on Lambert v. California, 355 U.S. 225 (1957). We believe that Doolittle's reliance on Lambert is misplaced. In that case, the Supreme Court determined that a law requiring a person convicted of a felony to register with the City of Los Angeles if he resides there for more than five days violated due process "[w]here a person did not know of the duty to register and where there was no proof of the probability of such knowledge," in part, because "circumstances which might move one to inquire as to the necessity of registration are completely lacking." Id. at 229-30. In the current case, Doolittle was previously convicted of the failure to register as a sex offender in two different states. Accordingly, we cannot agree that Doolitle had no knowledge of the probability of a registration requirement. Cf. United States v. Whaley, 577 F.3d 254, 256, 262 (5th Cir. 2009) (rejecting due-process challenge by defendant who was convicted of sexual offense in Kansas and who later moved to Texas without registering as required by federal Sex Offender Registration and Notification Act and distinguishing Lambert on grounds that defendant "was aware that he was required to register his address with the government" because of warnings given by prior conviction and concluding that "notice of a duty to register under state law" satisfies due process).
At the outset, we note that we can find no basis for the proposition that an individual who has been convicted of a sexual offense has a substantive due-process right to not register as a sex offender. Similarly, to the extent that Doolittle's claim regarding a lack of notice presents a substantive, rather than a procedural, due-process challenge, we do not believe that Doolittle has identified a cognizable substantive due-process right regarding notice. Although notice regarding prohibited conduct is necessary and is achieved through the enactment of statutes setting out the elements for a criminal offense and the accompanying punishment possibilities, see Lawrence v. State, 240 S.W.3d 912, 917 (Tex. Crim. App. 2007) (explaining that "the statute provides notice to the ordinary citizen of what conduct is prohibited"), Doolittle is essentially arguing that he should have been given personal notice when the State elected to enact the Program or been warned of all potential collateral consequences or obligations that could result from his decision to commit a crime in Idaho if he later chose to move to another state and that the failure to notify or warn should prohibit any future conviction for failing to satisfy the terms of those obligations, see Rodriguez, 93 S.W.3d at 72 (likening requirements of Program "to those quasi-administrative adjuncts of a criminal sentence that have not traditionally been considered criminal sanctions: for example, the loss of voting privileges, license suspensions or revocations, as well as the . . . dissemination of rap sheet information"); cf. United States v. Dixon, 551 F.3d 578, 584 (7th Cir. 2008) (rejecting defendant's arguments that he was denied due process "because he did not receive personal notice of the enactment of the Sex Offender Registration and Notification Act, let alone of the requirements . . . under it"), rev'd on other grounds, Carr v. United States, 560 U.S. 438, 458 (2010) (concluding that for there to be offense of failing to register under federal statute, travel to another state must occur after effective date of federal statute).
In any event, as part of his plea-bargain agreement, Doolittle stipulated to the allegations in the indictment that he had been previously convicted of failing to register in Oregon in 2008 and in Washington in 2011. Accordingly, by the time that Doolittle moved to Texas after his 2011 conviction, the Texas statutes requiring registration had already been enacted, see Act of May 26, 1991, 72d Leg., R.S., ch. 572, § 1, sec. 8, 1991 Tex. Gen. Laws 2029, 2030 (imposing registration requirement for offenses committed "on or after September 1, 1991"), amended by Act of June 1, 1997, 75th Leg., R.S., ch. 668, § 1, art. 62.11, 1997 Tex. Gen. Laws 2253, 2260 (expanding registration requirement to compel registration for conviction "occurring on or after September 1, 1970") (current version at Tex. Code Crim. Proc. arts. 62.001-.408), and Doolittle was on notice that his prior conviction for lewd conduct could result in registration requirements.
Regarding Doolittle's contention that his ineligibility for seeking early release from his lifetime-registration requirement somehow runs afoul of a substantive due-process right to his reputation or some other cognizable liberty interest, we note that one of our sister courts of appeals has confronted a similar issue. See Exparte Chamberlain, 352 S.W.3d 121 (Tex. App.—Fort Worth 2011, pet. ref'd). In Chamberlain, the court noted that the list promulgated by the Council stated that the offense at issue in that case was excluded from the deregistration provisions "'at this time.'" See id. at 123. However, the court reasoned that "[t]he fact that Chamberlain is not eligible to petition for deregistration, . . . does not mean that the [Program]'s lifetime registration requirement is not rationally related to a legitimate state interest or that it violates substantive due process as applied to Chamberlain." Id.; see also Ex parte Chamberlain, 306 S.W.3d at 334, 335 (explaining that "there is no question that the Texas Legislature has a legitimate interest in protecting the citizens of Texas from sexual predators" and that registration requirement "is a rational means to further a legitimate state interest"). Further, the court explained that "[t]he determination of which offenses should be eligible for deregistration" and that "complaints about whether the application of the [Program]'s registration requirements should be contingent on the seriousness of the offense or whether registration for nonviolent sex offenders should be limited in duration are questions better left for the legislature." Ex parte Chamberlain, 352 S.W.3d at 123, 124. In addition, the court reasoned that "[t]he fact that Chamberlain is not eligible at this time to pursue deregistration because he pleaded guilty to and was convicted of an offense that is not included on the" list issued by the Council "does not create a violation of Chamberlain's substantive due process rights; it simply means that the legislature, via the [Council], in consideration of the category of offense committed by Chamberlain, has determined that Texas's citizens should continue to be protected from perpetrators of this type of sexual offense." Id. at 123-24. Finally, the court stated that because the Program "does provide a mechanism for early deregistration for certain offenses and under certain circumstances dictated by the legislature and the [Council], the lifetime registration requirement is rationally related to Texas's legitimate interest in protecting its citizens from sexual predators." Id. at 124.
We agree with the reasoning from our sister court and also conclude that Doolittle's substantive due-process rights are not violated by his ineligibility for early release from the registration requirements. Similarly, we conclude that Doolittle's substantive due-process rights were not infringed on by his inability to challenge whether his prior offense should be classified as a sexually violent offense for registration purposes. Determinations regarding what offenses should qualify as sexually violent ones are best left to the legislature to decide, and the legislature's choice to include some registerable offenses within the definition of sexually violent offenses but not others and to require lifetime registration for individuals who commit sexually violent offenses is rationally related to the legitimate interest of protecting citizens from sexual predators. Cf. Jordan v. State, 56 S.W.3d 326, 331 (Tex. App.—Houston [1st Dist.] 2001, pet. ref'd) (overruling due-process challenge to statute prohibiting individuals convicted of certain offenses from possessing firearms because "statute was rationally related to the congressional goal of precluding access to firearms for those convicted of serious crimes" due to "their greater potential to abuse the right to possess firearms"). This seems particularly true here given the young age of the victim from the prior offense.
In his brief, Doolittle notes the retroactive application of the requirements of the Program when presenting his lack-of-notice claims. To the extent that Doolittle is attempting to present a separate retroactive challenge to the requirements of the Program and to the extent that he could raise that challenge in this appeal as a substantive due-process claim, we note that the court of criminal appeals has determined that "the retrospective application of Texas's sex offender registration statute" to an individual who was convicted of a crime before the enactment of the statute requiring registration for life for that offense did not violate the Ex Post Facto Clause of the federal Constitution or the prohibition against retroactive laws in the Texas Constitution. Rodriguez v. State, 93 S.W.3d 60, 65, 66, 79 (Tex. Crim. App. 2002). In reaching that ultimate conclusion in Rodriguez, the court discussed the public-safety concerns that the Program was meant to address and reasoned that the legislature's intent in enacting the statutes imposing the requirements of the Program was "civil and remedial, and not criminal or punitive"; that the registration requirements did "not constitute an affirmative disability or restraint" because, in part, the registration obligation only required registration when a person moves and only required verification of current address once a year; that the registration requirements apply "automatically" without requiring "a culpable mental state," are "regulatory in nature," and "do not vary among offenders"; that the legislature enacted the statutes "amid public outcry that sex offenders were particularly likely to re-offend and that the communities in which sex offenders lived were entitled to be warned of the offenders' presence in order to protect themselves from future harm"; that "[a] reasonable legislator could have believed that the assembly and maintenance of a database to track the whereabouts of sex offenders convicted since 1970 bore a rational connection to the promotion of public safety" even though "the legislature did not impose similar requirements on other types of offenders"; and that the obligations were not "excessive" "in light of [their] nonpunitive aims." Id. at 68-79. Although that decision did not address retroactivity concerns in the context of substantive due process, we believe that the resolution in that case compels a determination that the retroactive application of the requirements of the Program did not violate Doolittle's substantive due-process rights. See Reynolds v. State, 385 S.W.3d 93, 100 (Tex. App.—Waco 2012) (determining that "the retroactive effect of the" Program did "not render it unconstitutional" because registration requirements "are necessary to safeguard the public safety of the citizens of this state"), aff'd, 423 S.W.3d 377, 383 (Tex. Crim. App. 2014) (affirming remaining appellate issue but determining that constitutional claim was not preserved). --------
For all of these reasons, we conclude that the application of the Program's requirements to Doolittle did not violate his substantive due-process rights and, therefore, overrule Doolittle's first issue on appeal.
Terms of the Judgment
In his second issue on appeal, Doolittle contends that the language of the district court's judgment of conviction needs to be modified. Although Doolittle concedes that the punishment level for his conviction was properly elevated to that of a second-degree felony due to his prior convictions for failing to register, see Tex. Code Crim. Proc. art. 62.102(c), he urges that the underlying indictment and the judgment incorrectly state that the offense itself was a second-degree felony rather than a third-degree felony, see id. art. 62.102(b)(2). Further, Doolittle asserts that the judgment inaccurately refers to subarticle 62.102(c) as governing the offense when that subarticle simply authorizes the elevation of the punishment level. Accordingly, Doolittle contends that the district court "did not have jurisdiction to convict him of" the second-degree felony and urges this Court to modify the judgment to reflect a conviction "for a third degree felony under" subarticle "62.102(b)(2)." In its appellee's brief, "[t]he State agrees with [Doolittle] that the judgment should be modified to reflect [his] conviction of a third degree felony." See Ford v. State, 334 S.W.3d 230, 235 (Tex. Crim. App. 2011) (explaining that subarticle "62.102(c) refers to 'punishment' only" and does "not increase the grade of [the] . . . offense").
This Court has the authority to modify incorrect judgments when it has the information necessary to do so, see Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993), and for the sake of clarity and accuracy, we agree that the judgment of conviction should be modified in the manner suggested by Doolittle. Accordingly, we sustain Doolittle's second issue on appeal.
Having sustained Doolittle's second issue on appeal, we modify the judgment of conviction to reflect that Doolittle was convicted of a third-degree felony under subarticle 62.102(b)(2) of the Code of Criminal Procedure. Having overruled Doolittle's other issue on appeal, we affirm the district court's judgment of conviction as modified.
David Puryear, Justice Before Justices Puryear, Pemberton, and Goodwin Modified and, as Modified, Affirmed Filed: June 22, 2017 Do Not Publish