Joseph Michael Sterling v. State

• Court: Court of Appeals of Texas
• Decided: April 3, 2003
• Docket: 07-02-00183-CR
• Status: Published

Opinion

NO. 07-02-0183-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL E

APRIL 3, 2003

______________________________

JOSEPH MICHAEL STERLING, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 185TH DISTRICT COURT OF HARRIS COUNTY;

NO. 886600; HONORABLE SUSAN BROWN, JUDGE

_______________________________

Before QUINN and REAVIS, JJ., and BOYD, S.J.1

Appellant was convicted of failing to register as a sex offender as required by

Chapter 62 of the Code of Criminal Procedure. His only complaints on appeal are that the

statute is so vague as to render it void under the Texas and Federal Constitutions. Finding

no merit in appellant’s complaints, we affirm.

1 John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov’t Code Ann. §75.002(a)(1) (Vernon Supp. 2003). The relevant facts are undisputed. Appellant was convicted of sexual assault and

aggravated sexual assault in 1987. The record suggests that appellant’s probation was

revoked on at least two occasions and he was ultimately released from prison in 1999. By

virtue of his convictions, appellant was required to register as a sex offender on his release

by article 62.02(a) of the Code of Criminal Procedure2 (Vernon Pamph. 2003). Because

appellant had two reportable convictions, he was also subject to the provisions of article

62.06, which required him to “report to the . . . local law enforcement agency . . . not less

than once in each 90 day period . . . to verify the information in the registration form.” Id.

Appellant registered with the Houston Police Department in 1999 and verified his

information as correct each 90 days through January 2001. Appellant failed to report in

April 2001. Officers of the Sex Offender Compliance Unit of the Houston Police

Department investigated appellant’s failure to report by confirming that he no longer lived

at his registered address and had not registered with another agency. He was indicted for

failure to comply with sex offender registration requirements on October 18, 2001. See

art. 62.10(a).

Over his plea of not guilty, appellant was convicted by a jury and punishment was

assessed by the jury at 27 years confinement in the Institutional Division of the Texas

Department of Criminal Justice. Appellant does not challenge the sufficiency of the

evidence supporting his conviction, only the facial constitutionality of the statute under

2 All statutory references shall be to the Code of Criminal Procedure unless otherwise noted.

2 which he was convicted. The core of appellant’s challenge is that “the Texas statutory

scheme does not require that an individual be given any type of notice of the duty to report

to register, or any type of warning, before a criminal prosecution for failure to register is

authorized.” He also notes the indictment did not allege that he had been given any

warning of the necessity of reporting or registering.

The authority on which appellant places primary reliance is Lambert v. California,

355 U.S. 225, 78 S.Ct. 240, 2 L.Ed.2d 228 (1957), which involved a city ordinance

requiring anyone convicted of a felony to report to the police within five days of taking up

residence in the city. Before considering application of the holding in Lambert to the

present case, we must determine if appellant’s complaints are properly before us.

Appellant does not dispute that he had actual knowledge of his duty to register and

to verify his registration information quarterly. Nor does he deny that he did not raise any

constitutional challenge to the statute in the trial court. Consequently, the initial issues we

must consider are whether his failure to raise that issue in the court below waived his

complaint and whether he may raise a facial challenge to the statute.

The State initially argues that appellate review of a statute’s constitutionality as

applied must be raised in the trial court. See Curry v. State, 910 S.W.2d 490, 496

(Tex.Crim.App. 1995). This is a correct statement of the law, but has no application here

because appellant’s challenge is to the facial validity of the statute, a claim which may be

raised for the first time on appeal. See Marin v. State, 851 S.W.2d 275, 279

3 (Tex.Crim.App. 1993); Marbut v. State, 76 S.W.3d 742, 749 (Tex.App.--Waco 2001, pet.

ref’d). Appellant did not waive his challenge to the facial validity of article 62.09 by failing

to present that challenge to the trial court.

However, the fact that appellant could make no complaint that the statute is

unconstitutionally vague as to him precludes his facial validity challenge. In Village of

Hoffman Estates v. The Flipside, Hoffman Estates Inc., 455 U.S. 489, 102 S.Ct. 1186, 71

L.Ed.2d 362 (1982), the Court noted that “one to whose conduct a statute clearly applies

may not successfully challenge it for vagueness.” 455 U.S. at 495 (n.7). Here, the

evidence shows that appellant had actual knowledge of his duty to verify his registration

information. It also shows that under Chapter 62, he would have been informed of his

obligations under that chapter on his release from prison. See Tex. Code Crim. Proc. art.

62.03(a)(1) (Vernon Pamph. 2003). Moreover, appellant’s knowledge and failure to object

at trial distinguish the facts before us from those presented in Lambert, supra.

We overrule both of appellant’s issues on appeal and affirm the judgment of the trial

court.

John T. Boyd Senior Justice

Do not publish.