Dewalt, Suzanne Kearns

• Court: Court of Criminal Appeals of Texas
• Decided: April 9, 2014
• Docket: PD-1724-13
• Status: Published

Opinion

Death Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

---

NO. PD-1724-13 & WR-80,782-01

---

SUZANNE KEARNS DEWALT, Appellant

v.

THE STATE OF TEXAS

&

EX PARTE SUZANNE KEARNS DEWALT, Applicant

---

ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW FROM THE THIRD COURT OF APPEALS

 AND

APPLICATION FOR A WRIT OF MANDAMUS

FROM CAUSE NO. CR2006-132 IN THE 207TH DISTRICT COURT

COMAL COUNTY

---

           Cochran, J., filed a concurring statement in which Johnson, J., joined.

           I join in the Court’s order refusing applicant’s petition for discretionary review, and denying her petition for writ of mandamus, but I write separately (1) because I believe applicant raises an important issue concerning the use of sex offender registration as a means to keep track of a non-sex offender’s whereabouts, and (2) to note that kidnapping of a child by that child’s parent or guardian is, as of April 2013, on the list of offenses for which early termination of sex offender registration is available, and its absence from the list prior to that date appears to have been inadvertent.

I.

           After losing a child custody battle, applicant fled to Mexico with her five-year-old son. She was arrested there three years later and eventually convicted of aggravated kidnapping. She received a five year sentence, which discharged in 2005. It is undisputed that although applicant “has not been charged with or convicted of any ‘sex offense’ as that term would normally be understood, it remains that her conviction for aggravated kidnapping, coupled with a mandatory affirmative finding made by the district court that the victim [applicant’s son] was less than 17 years of age at the time of the offense, established a ‘reportable conviction’ that triggers Chapter 62's reporting obligations.” Applicant “is, in the eyes of Texas law, a ‘sex offender’ who must self-report as such through the end of the current decade.” Applicant filed a motion for early termination of her obligation to register under Article 62.404. That Article provides,

(a) A person required to register under this chapter who has requested and received an individual risk assessment under Article 62.403 may file with the trial court that sentenced the person for the reportable conviction or adjudication a motion for early termination of the person’s obligation to register under this chapter.

(b) A motion filed under this article must be accompanied by:

(1) a written explanation of how the reportable conviction or adjudication giving rise to the movant’s registration under this chapter qualifies as a reportable conviction or adjudication that appears on the list published under Article 62.402(b); and

(2) a certified copy of a written report detailing the outcome of an individual risk assessment evaluation conducted under Article 62.403(b)(1).

Applicant presented to the trial judge number (2), but not (1), because aggravated kidnapping was not on the then-applicable list published under Article 62.402(b)–the list of offenses for which early termination is permissible. The trial judge denied applicant’s motion for early termination. I agree that this decision is not appealable or mandamusable. Nevertheless, legislative history suggests that sex offender registration in these circumstances may be the result of an unintentional legislative oversight.

II.

           Texas first created a sex offender registration requirement in 1991. In 1999, the Texas Legislature added kidnapping and aggravated kidnapping to the list of offenses requiring sex offender registration if the victim was under 17 years of age at the time of the offense. This amendment was a specific reaction to the federal Jacob Wetterling Crimes Against Children and the Sexually Violent Offender Registration Act of 1994, which forced states to choose between a reduction in federal funding or conforming sex offender registration requirements to a federal standard. Although the Jacob Wetterling Act required states to add kidnapping to their lists of registration-requiring offenses, the act contained an explicit exception for kidnapping committed by a child’s parent. Furthermore, the Attorney General’s guidelines recognized that, while federal law required registration of offenders who commit offenses against minor victims, “[i]t is a matter of state discretion under these clauses whether registration should be required for [kidnapping] in cases where the offender is a parent of the victim.” Either intentionally or through oversight, the Texas Legislature did not include any such exception.

            In 2005, Texas’s 79th Legislature, recognizing that “the registration program [had] become too cumbersome and difficult to manage,” passed a law allowing for early termination of sex offender registration for those convicted of offenses identified by the Council on Sex Offender Treatment (the Council) as having longer registration requirements under Texas law than under the federal Jacob Wetterling Act. Although the Jacob Wetterling Act has always recognized a registration exception for parents who are convicted of kidnapping their own children, the Council did not allow early termination in these circumstances until April 2013.

III.

           Applicant was not entitled to relief from the trial judge because her motion for early termination was filed before April 2013, and thus before a parent convicted of kidnapping her own child fit the criteria for early termination as defined by the Council. Therefore the trial judge did not err in denying her motion. However, because such an offender is now eligible for early termination, applicant could now file another motion for early termination with the trial judge.

           Although Texas now allows for discretionary early termination for parents convicted of kidnapping their own children, Texas law still requires them to register for ten years, post discharge. As the prosecutor noted at the hearing for early termination, “The reason we have sex offenders register is so we know where they’re at.” But does that rationale apply here?

           Before 1999, sex offenders were those who committed sex crimes. The Jacob Wetterling Act, along with many states’ registration laws, were passed in reaction to the murder and sexual assault of a 7-year-old girl by a neighbor who, “unknown to the victim’s family, had prior convictions for sex offenses against children.” Registration requirements for certain crimes were established to “to prevent repeat sex offenses and to aid the investigation of reported offenses.” The Texas Legislature intended to identify sex offenders because of their purportedly high recidivism rates and because “the total number of serious sex offenses are committed by a relatively small number of multiple and repeat sex offenders. And while federal law and the majority of states’ laws do not require parents who kidnap their children to register as sex offenders at all, Texas has either intentionally or through oversight determined that these parents should register alongside predators convicted of indecency with a child, sexual assault, compelling prostitution, and promotion of child pornography.

           It is the legislature’s prerogative to determine which offenders warrant the additional and more intense supervision of registered sex offenders. But the legislature may reexamine whether the kidnapping of one’s own child is consistent with the legitimate and non-punitive purpose of sex offender registration: public safety that is advanced by alerting the public to the risk of sex offenders in their community. Perhaps the Texas Legislature will join the federal government’s determination, and the determination of at least thirty-four other states, that kidnapping one’s own child is not a sex offense and does not automatically require sex-offender registration.

Filed: April 9, 2014

Publish