Ex parte Chamberlain

306 S.W.3d 328

Ex parte Bryan Scott CHAMBERLAIN.

No. 2-09-079-CR.

Court of Appeals of Texas, Fort Worth.

December 17, 2009.

William S. Harris, Fort Worth, TX, for Appellant.

Joe Shannon, Jr., Criminal District Attorney, Charles M. Mallin, Andrea Jacobs, Assistant Criminal District Attorney, Fort Worth, TX, for Appellee.

Panel GARDNER, WALKER, and McCOY, JJ.

OPINION

SUE WALKER, Justice.

I. INTRODUCTION

Appellant Bryan Scott Chamberlain appeals the trial court's order denying relief on his application for writ of habeas corpus that he filed pursuant to article 11.072 of the Texas Code of Criminal Procedure. In two issues Chamberlain complains: that the trial court was required to conduct an evidentiary hearing on his application and, in an issue of first impression in Texas, that the Texas Sex Offender Registration Program (SORP) violates the substantive due process rights guaranteed to him under the Fourteenth Amendment to the United States Constitution. Because the trial court did not abuse its discretion by not conducting a hearing on Chamberlain's application and because the SORP does not violate substantive due process, we will affirm the trial court's order denying habeas corpus relief.

II. PROCEDURAL BACKGROUND

Prior to September 1, 1997, the code of criminal procedure imposed a ten-year sex offender registration requirement; a person placed on deferred adjudication for sexual assault was required to register during any community supervision term and until the tenth anniversary of the date on which the court dismissed the criminal proceedings against the person and discharged the person. See Act of May 29, 1995, 74th Leg., R.S., ch. 676, § 2, 1995 Tex. Gen. Laws 3649, 3649-50 and Act of May 16, 1995, 74th Leg., R.S., ch. 258, § 1, 1995 Tex. Gen. Laws 2197, 2197 (both amended 1997) (current version at Tex. Code Crim. Proc. Ann. art. 62.101(a) (Vernon 2006)). Effective September 1, 1997, the law changed to mandate that a person with a reportable conviction or adjudication for a sexually violent offense register as a sex offender for the person's entire life. See Act of June 1, 1997, 75th Leg., R.S., ch. 668, § 1, 1997 Tex. Gen. Laws 2253, 2254, 2261 (amended 2005) (current version at Tex.Code Crim. Proc. Ann. art. 62.101(a) (Vernon 2006)).¹

Approximately one month after the sex offender registration requirement changed to require lifetime registration, Chamberlain pleaded guilty pursuant to a plea bargain agreement to the second-degree felony offense of sexual assault, a sexually violent offense. The trial court accepted Chamberlain's plea and, pursuant to the terms of the plea bargain, deferred an adjudication of guilt and placed Chamberlain on four years' community supervision. Chamberlain did not appeal.²

Chamberlain successfully completed his community supervision term, and the trial court discharged him from community supervision. Seven years later, Chamberlain filed an application for writ of habeas corpus, asking the trial court (1) to find that his plea was involuntary because it was obtained as a result of the ineffective assistance of his trial counsel who had failed to inform him that his plea would require lifetime sex offender registration instead of requiring registration only during the term of his community supervision and for ten years thereafter and (2) to declare the SORP unconstitutional as violative of substantive due process. After considering Chamberlain's application, affidavits from Chamberlain and his friends, the State's response, an affidavit from Chamberlain's trial attorney, and Chamberlain's reply, the trial court denied relief without holding a hearing. Chamberlain now appeals.

III. STANDARD OF REVIEW

In general, a trial court's ruling in a habeas proceeding should not be overturned absent a clear abuse of discretion. Ex parte Jessep, 281 S.W.3d 675, 678 (Tex. App.-Amarillo 2009, pet. ref'd). We are to evaluate whether the trial court abused its discretion by determining whether the trial court acted without reference to any guiding rules or principles. Id. In doing so, we view the evidence in the light most favorable to the trial court's ruling. Ex parte Wheeler, 203 S.W.3d 317, 325-26 (Tex.Crim.App.2006) (holding court of appeals was to review facts in light most favorable to trial court's ruling even when no witnesses testified and all evidence was submitted in written affidavits); State v. Wilson, 288 S.W.3d 13, 16 (Tex.App.-Houston 1st Dist. 2008, pet. granted) (applying standard of review to article 11.072 writ).

IV. NO HEARING REQUIRED

In his first issue, Chamberlain argues that the trial court abused its discretion by entering findings of fact and conclusions of law without conducting a live hearing on the issue of whether his plea was voluntary. Chamberlain complains that the trial court abused its discretion by making fact findings based on inconclusive, conflicting affidavit evidence concerning whether his trial counsel informed him of the lifetime sex offender registration requirement. Chamberlain's affidavit swore that he was not so informed; his trial counsel's affidavit indicated that he did not remember, that his file had been destroyed, but that it would have been his normal practice to so advise Chamberlain. Thus, Chamberlain contends that the issue of the voluntariness of his plea hinged on the trial court's resolution of a credibility issue and that, consequently, he was entitled to a hearing to test his former counsel's assertions that he would have informed Chamberlain of the change in the law requiring lifetime sex offender registration. Chamberlain argues that the trial court's failure to conduct a hearing in light of this credibility issue constituted an abuse of discretion and deprived him of due process.

We have previously held that there is no language in article 11.072 requiring the trial court to conduct a hearing on an application for habeas corpus before rendering its decision on the relief sought. See Ex parte Cummins, 169 S.W.3d 752, 757 (Tex.App.-Fort Worth 2005, no pet.); see also Ex parte Jones, No. 02-07-00388-CR, 2008 WL 3185168, at *9 (Tex.App.-Fort Worth Aug. 7, 2008, pet. ref'd) (mem. op., not designated for publication). We have also previously held that the legislature did not intend to prohibit the trial court from considering evidence filed with the application or with the State's response without conducting a hearing. See Cummins, 169 S.W.3d at 757. The trial court's findings of fact evidence that it did that here. Because article 11.072 does not require the trial court to hold a hearing before rendering its decision on Chamberlain's requested relief, we hold that the trial court did not abuse its discretion by considering Chamberlain's application, affidavits from Chamberlain and his friends, the State's response, an affidavit from Chamberlain's trial attorney, and Chamberlain's reply and by ruling without holding a hearing.³ Accord Wheeler, 203 S.W.3d at 325-26 (requiring appellate court to defer to trial court's findings even when made or implied based solely on affidavits). We therefore overrule Chamberlain's first issue.

V. SUBSTANTIVE DUE PROCESS SATISFIED

In his second issue, Chamberlain raises as-applied and facial substantive due process challenges to the constitutionality of the SORP under the United States Constitution. In the trial court, however, Chamberlain raised only as-applied challenges;⁴ he is therefore prohibited from raising a facial challenge for the first time here. See Karenev, 281 S.W.3d at 435 (concluding that a defendant may not raise a facial challenge to the constitutionality of a statute for first the time on appeal). We therefore limit our analysis to whether the SORP as applied to Chamberlain violates substantive due process under the United States Constitution.

A. Chamberlain's Arguments and His Facts

Chamberlain essentially makes two as-applied substantive due process challenges to the SORP. First, Chamberlain argues that the SORP violated substantive due process by imposing on him a compulsory initial registration without any individualized assessment of how dangerous he was or his likelihood of re-offending. Second, Chamberlain argues that the SORP violates substantive due process because it requires him to register for his entire life but provides no mechanism for a determination that, at some point during his lifetime, he is no longer dangerous or no longer a risk for re-offending and, consequently, should no longer be required to register. In support of both of these challenges, Chamberlain points out in his application that his conviction stemmed from facts that do not demonstrate dangerousness or a likelihood of re-offending. Chamberlain alleges that after an evening of drinking and dancing at a nightclub, the complainant accompanied him and his friends to an apartment where they continued to drink and dance. Chamberlain claims that eventually he and the complainant retired to one of the bedrooms where they had consensual sex. He alleges that the next morning, the complainant went to breakfast with him and his friends and that the group then went to his apartment where the complainant visited with his friends while Chamberlain took a shower and changed clothes. Chamberlain said that when he took the complainant home, she kissed him, gave him her phone number, and asked him to call her. Chamberlain states that he "reluctantly agreed to accept the plea bargain and pleaded guilty to the charge" because he was advised that "this was the quickest way to get this whole mess over with."

B. Substantive Due Process Law

Generally, substantive due process protects against the arbitrary exercise of governmental powers, unrestrained by established principles of private rights. See County of Sacramento v. Lewis, 523 U.S. 833, 845, 118 S.Ct. 1708, 1716, 140 L.Ed.2d 1043 (1998). The United States Supreme Court's substantive due process analysis has two primary features:

Firs

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