Opinion
No. 11-08-00190-CR
Opinion filed December 11, 2008. DO NOT PUBLISH. See TEX. R. APP. P. 47.2(b).
On Appeal from the 32nd District Court Nolan County, Texas, Trial Court Cause No. 10176.
Panel consists of: WRIGHT, C.J., McCALL, J., and STRANGE, J.
MEMORANDUM OPINION
This is an appeal pursuant to TEX. R. APP. P. 31. John Christopher Covey, Jr. originally entered a plea of nolo contendere to the offense of attempted sexual assault. Pursuant to the plea bargain agreement, the trial court deferred the adjudication of appellant's guilt, placed him on community supervision for eight years, and assessed a $750 fine. Appellant filed an application for writ of habeas corpus under TEX . CODE CRIM . PROC. ANN. art. 11.072 (Vernon 2005) on the grounds that he was not afforded the effective assistance of trial counsel. After a hearing, the trial court denied the application. We affirm.
Issue on Appeal
In his sole issue on appeal, appellant contends that his plea of nolo contendere was involuntary. He argues that trial counsel provided misinformation concerning when he would be eligible to apply for early release from the requirement that he register as a sex offender. Appellant maintains that this misinformation actually induced him to enter his plea. Appellant acknowledges that he would have been convicted had he opted for a jury trial and that he would have been subject to the same registration requirements had the jury elected to probate his sentence. However, appellant contends that, because his plea was based on trial counsel's misinformation and ineffectiveness, reversible error has occurred.Proceedings in the Trial Court
A. 2006 Plea Hearing. The hearing on appellant's plea began with the trial court identifying appellant for the record and asking appellant:THE COURT: It is my understanding that you're here to enter a plea to attempted sexual assault, a third degree felony. Is that why you understand that you are here?
APPELLANT: That's what I've been told, yes, sir.
THE COURT: Okay. Mr. Covey, if you're going to have an attitude here, it's going to take a lot longer; it's going to be harder for you.
APPELLANT: I don't mean to have an attitude, sir. I'm not myself.
THE COURT: I don't know anything about this case. This is the first time I have seen you, and it's in your best interest if this is the last time you see me. Do you understand that?
APPELLANT: Yes, sir.
THE COURT: Now, it's my understanding that you're entering a plea to this charge of aggravated sexual assault, or excuse me, attempted sexual assault. Is that why you understand that you are here?
APPELLANT: Yes, sir.
THE COURT: Have you had enough time and opportunity to visit with [Defense Counsel] prior to my calling this case?
APPELLANT: Yes, sir.
THE COURT: I'm going to go over your rights with you briefly. If you have any question about anything that I say, feel free to ask me, or we'll take a recess and you can visit with your attorney until you're fully satisfied that [you] understand everything that's happening. Do you understand that?
APPELLANT: Yes, sir.The trial court then reviewed individually appellant's right to remain silent, his right to not testify against himself, his right to trial by jury, his right to confront witnesses, and his right to bring evidence. After each admonishment, appellant responded that he understood the right involved and was waiving that right. The trial court also informed appellant of his right to visit with his counsel at any and all times during the proceedings. Appellant indicated that he understood. The trial court then proceeded to admonish appellant in great detail concerning the plea bargain agreement, the consequences of entering into such an agreement, and the range of punishment for the offense. Appellant testified that he still wanted to enter the plea; that no one was forcing him, tricking him, or promising him anything to enter the plea; and that he was not under the influence of any medications, drugs, or intoxicating substances that would interfere with his understanding of the proceedings. Trial counsel informed the trial court that he was satisfied that appellant was making a knowing and intelligent waiver of his rights. When the trial court proceeded to question appellant concerning the written admonishments he had signed and the charge against him, the following occurred:
THE COURT: As to that charge, how do you plead?
APPELLANT: No contest.
THE COURT: Do you understand what a no contest plea means?
APPELLANT: Means she can't sue later.
THE COURT: What it means today is that you're — they have made this allegation against you. You're not admitting it, you're not denying it; obviously no contest. But, you're agreeing if the State brought its witness into court, their witness would say you're guilty of this offense. Whether you agree with that witness or not, you agree that's what the State's evidence would be?
APPELLANT: Yes, sir.The trial court accepted the plea and again admonished appellant concerning the consequences of his plea agreement including if his guilt was later adjudicated. Appellant then testified that he knew the victim and that, if the victim were present, she would have testified that he had grabbed her by her arms, dragged her into a bedroom, pulled her pants down to her ankles, and caused abrasions to her arms, back, and chest. Appellant testified that all of these actions were in preparation for a sexual assault. Appellant also testified that he was very remorseful and that the incident was "deeply painful" to him. He stated that he had never done anything like this before and that he had been "severely intoxicated" and did not remember the event. He stated that he felt that he could successfully carry out the "rulings of probation as imposed by" the trial court. The trial court then addressed the questions trial counsel and appellant had about the conditions of probation. Trial counsel informed the trial court that appellant lived with his parents and that appellant would be around relatives under the age of seventeen during the holidays. Trial counsel also informed the trial court that appellant's parents occasionally drank wine. Trial counsel asked the trial court to modify the conditions of community supervision so that appellant could use the computer to do his online banking. When the trial court told appellant that he could not drink, appellant stated that he had been sober for eight months. The trial court also told appellant that he could use a computer but that he could not be on the internet for any reason. The following then occurred:
APPELLANT: I'm not allowed on the internet for eight years?
THE COURT: That's correct. Do you understand that's the way I'm going to impose these rules?
APPELLANT: Is there anyway in the near future that could change?
THE COURT: Any of these rules could change. They could be lifted; there could be more restrictions placed on you while you're on probation. It's certainly something that is reviewed, but there is no guarantees, so you might just have the mind set this is the way it's going to be. If it gets better, great; if it doesn't, you're not — I don't want you to feel like you were tricked in anyway. Expect the worst as far as what these restrictions are on you, and if something else works out —
APPELLANT: Who changes those restrictions?
THE COURT: I do.Appellant asked the trial court, "All of these rules go into effect the moment I leave here?" The trial court answered, "Correct," and explained the probation process to appellant. Appellant told the trial court that he was twenty-four years old and explained that he had never been convicted of or charged with any other offense. The trial court stressed the seriousness of the situation and the consequences of being on community supervision. At the conclusion of the trial court's admonishments, appellant asked:
APPELLANT: It says that there's a chance of getting taken off of the sexual offender earlier than probation is up. What's — what are the rules on that?
THE COURT: Discretionary with the Court. So, there's not like a checklist that you can do and automatically get anything done. There are really no promises to you other than that it's subject to being reviewed.
APPELLANT: Within eight years if I get married and have a child, does that child — does that mean I have to live in a separate home with my wife?
THE COURT: Probably not. I mean we deal with those type situations. It's punishment. Under probation, there's still a punitive aspect to it.The trial court accepted appellant's plea and the plea bargain agreement, deferred the adjudication of guilt, and placed appellant on community supervision pursuant to the agreement. The trial court reviewed appellant's obligation under the conditions of his community supervision, including the payment of the fine and costs. Appellant informed the trial court that he had $1,200 with him. B. 2008 Hearing on Appellant's Article 11.072 Application. Appellant's new counsel explained to the trial court that the application for writ of habeas corpus was based on the premise that appellant would never be eligible to file a motion under TEX. CODE CRIM. PROC. ANN. art. 62.404 (Vernon 2006) for early release from registration requirements. Counsel argued that Article 62.404 motions were tied to the federal guidelines providing that a defendant must serve a minimum of ten years before the registration requirement could be reviewed. As applied to appellant's case where his adjudication had been deferred and he was placed on community supervision for eight years, counsel argued that appellant would never be eligible to petition for early release of registration and that, therefore, appellant "would have to do the lifetime registration before he'd be eligible to petition for early release." Appellant testified that the amount of alcohol he had consumed prevented any recollection of the incident. He had discussed with his retained trial counsel whether he should go to trial or accept the State's plea bargain offer. The offense was not the "sort of thing" that was "in" his character. He was concerned about the sex offender registration program and discussed his concerns with his counsel. Appellant offered into evidence the following letter from his counsel advising him on his concerns:
As you know, this matter is set for guilty plea on January 9, 2006 at 9:00 a.m. You have requested that I advise on whether you would be subject to the sex offender registration program's requirements incident to your plea. This letter shall confirm my findings concerning same. Clearly, you would be required to register as a sex offender upon entry of your plea in Nolan county.
Fortunately, Texas Code of Criminal Procedure Art. 62.404 provides for permissive early termination from registration. Early termination would require the filing of a motion with the court requesting same accompanied by a (1) written explanation of the event giving rise to the reporting requirement; and (2) a certified copy of a written report detailing the outcome of an individual risk assessment evaluation. The written report is compiled by the Council on Sex Offender Treatment and evaluates the likelihood of repeat offenses and potential danger to the community.
I have spoken with the D.A. who indicated that the Judge in the 32nd District would likely not even contemplate such a motion until you've established some sort of track record on probation. However, I have learned you will not be eligible for early termination of probation pursuant to Art. 42.12 of the Texas Code of Criminal Procedure because of the requirement for sex offender registration. Therefore, you must "walk the line" for 8 years to successfully complete your probated sentence.
Moreover, since you will be placed on probation, the district judge is required by statute to order that you register as a sex offender and also submit a blood sample or other specimen to the Department of Public Safety under the Tex. Gov't Code Ann. for the purpose of creating a DNA record. The court must also issue an order requiring the Texas Department of Public Safety to include in any driver's license record or personal identification certificate record maintained by the department for the person an indication that the person is subject to the registration requirements of Tex. Code Crim. Proc. Ann. Ch. 62.
In short, as I read the law, you would probably not be eligible to file a motion for early termination until you have successfully completed all 8 years of your probation. The district judge will apparently have the sole discretion to determine whether to release you from registration requirements. Obviously, Art. 62.404 does not guarantee that you will be able to be released from the sex offender registration requirements at all and will remain under its requirements for life.
As for specific requirements of Sex Offender registration, I believe generally you would be required to is required to register or with the local law enforcement authority in any municipality where you reside or intend to reside for more than seven days. If you do not reside or intend to reside in a municipality, you must register or verify registration in any county where you reside or intend to reside for more than seven days. You must satisfy these requirements not later than the seventh day after your arrival in the municipality or county. Failure to register as required by law is further criminalized as a 3rd degree felony.
I look forward to seeing you in Sweetwater, Texas. I understand that you still wish to go forward with the plea bargain. Please alert my office immediately if you have had a change of heart./s/ Spencer Dobbs
PS — I learned from Bill Ervin that you have discontinued your sessions with him. I really think you should continue with Mr. Ervin to establish a track record in anticipation of your motion for early release (as you know, our investigator Jerry Davis was impressed with your efforts in this regard). Also, I think the support would be beneficial to avoid relapse.Appellant stated that he was still concerned with the registration requirements at the time of his plea hearing and asked the trial court, "[W]hat's the deal with possibly getting off sex offender registration early?" He recalled that the trial court informed him it was the trial court's "discretion." He testified that "under no circumstances" would he have agreed to "something" if it "would result in a lifetime registration." Appellant further stated that, if the trial court had said that he was subject to lifetime registration, he would have withdrawn his plea and had a jury trial. Appellant testified that he had already paid his entire court-ordered payments — fine, court costs, and eight years of monthly probation fees — in the belief that he "could get off early." He conceded in his testimony on direct that a jury would have found him guilty, that he believed a jury would have placed him on "felony probation," and that, by accepting the plea, he had no felony conviction and the same registration requirements as if the jury had placed him on community supervision. Appellant testified that he found the registration requirement to be "harmful" to him. On cross-examination, appellant again testified that his registration requirements as the trial court had imposed were the same as the ones he would have been subject to had a jury convicted him and elected to place him on community supervision. He stated that he had been on a couple of dates since he had been on community supervision and had come to the conclusion that he would be single. Appellant conceded that, although the sentence in his counsel's letter to him stated that he might have to register for life, he understood "that that was discretionary." On redirect, appellant explained that the registration requirement was "humiliating" for him and that it had "a chilling effect" on his romantic life. Appellant further testified that his decision to accept the plea bargain was "a calculation" because deferred adjudication community supervision would not be on his "record" for his "lifetime," whereas a felony conviction by the jury would have been on his "record" for his "lifetime." While appellant stated that the "most important thing" to him at the time of his plea was "how this was going to affect [him] in the future" and that he understood "there was no guarantee that [he] could get early release" from the registration requirements, he maintained that he would have elected to have a jury trial if he had known that he could not make an application for early release.