Ex parte Lane

670 S.W.3d 662

EX PARTE Danny Richard LANE, Applicant

NO. WR-90,084-01

Court of Criminal Appeals of Texas.

Delivered: June 28, 2023

Mark A. Rubal, Houston, for Applicant.

OPINION

Slaughter, J., delivered the opinion of the Court in which Keller, P.J., Hervey, Richardson, Keel, and McClure, JJ., joined.

This case arises from a conviction for the offense of failure to comply with sex-offender-registration requirements. See TEX. CODE CRIM. PROC. ANN. ART. 62.102(a). In his instant application for a post-conviction writ of habeas corpus, Applicant Danny Richard Lane challenges his 2007 conviction for that offense in five grounds: (1) actual innocence; (2) ineffective assistance of counsel; (3) involuntary plea; (4) due process violation; and (5) no evidence. Though Applicant has raised several grounds for relief, the underlying basis for all of his claims is the same: He alleges that, unbeknownst to him at the time of his guilty plea, he was not actually required to register as a sex offender because, although he was convicted of aggravated rape in 1982, that conviction was later "set aside" by the convicting court upon his successful completion of probation through a "judicial clemency" order. See former TEX. CODE CRIM. PROC. ANN. ART. 42.12, § 7.¹

Applicant contends that this action by the trial court wiped away his conviction for all purposes, and therefore, he had no reportable conviction requiring registration under the applicable statutes in Code of Criminal Procedure Chapter 62. In support of his position, Applicant relies on a decision from the Sixth Court of Appeals, issued after his guilty plea in this case, interpreting the relevant statutes to mean that a similarly situated individual had no duty to register and thus could not be guilty of failing to register as a sex offender. See Hall v. State , 440 S.W.3d 690 (Tex. App.—Texarkana 2013, pet. ref'd).

The habeas court has recommended that this Court grant Applicant relief, either based on ineffective assistance of trial counsel resulting in an involuntary plea,² or under a theory of actual innocence / no evidence. We, however, disagree with the habeas court's recommendation. With respect to Applicant's ineffective-assistance / involuntary-plea claim, viewing the facts and law from counsel's perspective at the time of the representation in 2007, we conclude that the law was unsettled as to whether Applicant had a duty to register as a sex offender following the trial court's grant of judicial clemency. Thus, trial counsel did not perform deficiently by failing to further investigate that issue when further investigation would not have yielded any clear answer under the law. Although Applicant has supported his claims by citing the subsequent decision of the court of appeals in Hall , we decline to hold trial counsel deficient based on legal developments that occurred after counsel's representation.

With respect to Applicant's remaining claims, we observe that they are all based on the underlying assumption that this Court will adopt the court of appeals’ analysis in Hall and interpret the applicable statutes to mean that Applicant had no duty to register under these circumstances. However, this Court has never endorsed the reasoning in Hall , and we do not do so today. Instead, we conclude that the governing statutes in Code of Criminal Procedure Chapter 62 mean that Applicant's 1982 aggravated rape conviction obligated him to register as a sex offender, notwithstanding the trial court's order granting him judicial clemency under former Code of Criminal Procedure Article 42.12, Section 7. Because we disagree with Applicant's view of the applicable statutory provisions, his remaining claims are without any legally meritorious basis. Accordingly, we simultaneously file and set this case and deny relief on all grounds.

I. Background

In June 1982, a jury convicted Applicant of aggravated rape, and he received a sentence of ten years’ imprisonment, probated.³ He did not appeal. Five years later, in March 1987, the trial court entered an order terminating Applicant's probation and setting aside the conviction under then-existing Texas Code of Criminal Procedure Article 42.12, Section 7. The statute contained a provision, sometimes referred to as "judicial clemency," which stated that the court, upon discharging the defendant from his probation, "may set aside the verdict or permit the defendant to withdraw his plea, and shall dismiss the accusation, complaint, information or indictment against such defendant, who shall thereafter be released from all penalties and disabilities resulting from the offense or crime of which he has been convicted or to which he has pleaded guilty[.]"⁴ But, the statute further provided that, in the event of a new conviction for any criminal offense, proof of the prior conviction that had been set aside "shall be made known to the court." Id.⁵

At the time of Applicant's aggravated rape conviction in 1982, there were no sex-offender-registration requirements. In 1991, the Legislature enacted the first sex-offender-registration program, and by 2005, the requirements were made retroactive so that anyone with a "reportable conviction" occurring on or after 1970 was required to register.⁶ The pertinent statute in Code of Criminal Procedure Chapter 62 defined a "reportable conviction" as "a conviction or adjudication, including an adjudication of delinquent conduct or a deferred adjudication, that, regardless of the pendency of an appeal, is a conviction for or an adjudication for or based on" a number of sex offenses, including the modern-day equivalent of Applicant's aggravated rape conviction, aggravated sexual assault. See TEX. CODE CRIM. PROC. ANN. ART. 62.001(5). Pursuant to the provisions in Chapter 62, a conviction for aggravated sexual assault is subject to a lifetime registration requirement.⁷

In 1998, Applicant was added to the sex-offender registry for the first time upon his release from prison on a drug charge. The habeas record reflects that Applicant registered in April of that year in Pasadena, Texas. In April 2007, after Applicant was arrested for another offense, officers discovered that he was not living at the address where he had previously registered as a sex offender and had not completed his registration requirements in recent years. Upon being questioned about this, Applicant told the investigating officer that he thought he was no longer required to register based on statements made by an attorney who represented him in another case. The investigating officer disagreed and told Applicant that, pursuant to the provisions in Code of Criminal Procedure Chapter 62, he had a lifetime duty to register. Applicant signed a form acknowledging this requirement and stated that he would have registered had he known he was required to do so. The officer scheduled an appointment for Applicant to complete his registration. Applicant "gave his word" that he would attend the appointment. He further acknowledged his understanding that the department would pursue criminal charges against him if he missed it. Despite this, Applicant failed to appear for the appointment.

Months later, in September 2007, the investigating officer again met with Applicant to inquire about his registration. Applicant told the officer "that he had been busy working and did not want his friends to deal with listing their residence as the home of a sex offender." Applicant was then arrested and charged for third-degree-felony failure to register as a sex offender.⁸ Because of Applicant's criminal history, he qualified as a habitual offender and faced a sentence of 25 years to life in prison.

The trial court appointed Attorney J.A. "Joe" Salinas to represent Applicant. Salinas obtained a plea offer from the prosecutor for Applicant to serve ten years in prison despite his habitual-offender status. According to Applicant, Salinas informed him that the prosecutor was "hard on these types of cases" and would revoke the ten-year offer if Applicant did not accept it that day. Thus, on October 29, 2007, Applicant accepted the offer and pleaded guilty.

Applicant did not appeal and, until filing the instant writ application, he has never previously sought any post-conviction habeas relief in this case. After serving eight years of the ten-year sentence, Applicant was paroled in August 2015.

While on parole, Applicant was again charged with failure to comply with sex-offender-registration requirements. In August 2017, he pleaded guilty to that offense and was sentenced to an additional five years’ imprisonment, to run concurrently with the remainder of his prior sentence. But then, according to Applicant, in September 2017, two attorneys from the Texas Department of Criminal Justice Office of State Counsel for Offenders contacted him and informed him that the Department had determined he in fact had no duty to register as a sex offender and would be removed from the registry.⁹ They informed him that this decision was made by the TDCJ Office of General Counsel and was based on the decision of the Sixth Court of Appeals in Hall , 440 S.W.3d 690.

In Hall , a case with nearly factually identical circumstances, the court of appeals held that an aggravated rape conviction that had been set aside through judicial clemency under former Article 42.12, Section 7, could not serve as the underlying offense for a failure-to-register charge. Id. at 692–94. To reach this conclusion, the court of appeals relied on Cuellar v. State , in which this Court reached a similar holding in the distinct context of a charge for felon in possession of a firearm under Penal Code Section 46.04(a). See 70 S.W.3d 815, 819–20 (Tex. Crim. App. 2002) (holding that because Cuellar's underlying felony conviction was set aside pursuant to the judicial-clemency provision, he was "not a convicted felon " and thus "there was no predicate felony conviction to support a conviction under § 46.04(a)") (emphasis...