Dewalt v. State
| Decision Date | 09 April 2014 |
| Docket Number | No. 03–12–00785–CR.,03–12–00785–CR. |
| Citation | 417 S.W.3d 678 |
| Parties | Suzanne Kearns DEWALT, Appellant v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
OPINION TEXT STARTS HERE
Sammy McCary, Comal County, Criminal District Attorney's Office, New Braunfels, TX, for Appellee.
James A. Hemphill, Matthew B. Baumgartner, Graves, Dougherty, Hearon & Moody, P.C., Austin, TX, for Appellant.
Before Chief Justice JONES, Justices PEMBERTON and FIELD.
In 2006, appellant Suzanne Kearns Dewalt was convicted of aggravated kidnapping of her young son to avoid a child-custody order.1 She was sentenced to a five-year prison term, which she has since completed and been released into the free world again. But among other lingering consequences of her conviction, Dewalt is now required to register as a “sex offender” under Chapter 62 of the Code of Criminal Procedure.2 Although both sides agree that Dewalt 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 (Dewalt's son) was less than 17 years of age at the time of the offense,3 established a “reportable conviction” that triggers Chapter 62's reporting obligations.4 Consequently, Dewalt is, in the eyes of Texas law, a “sex offender” who must self-report as such through the end of the current decade.5
At least for purposes of this proceeding, Dewalt has not disputed that Texas's “sex offender” registration requirements apply to her in the first instance. Instead, emphasizing the non-sexual nature of her offense (in the sense normally understood), Dewalt filed a motion for early termination of her obligation to register, invoking the mechanisms set forth in Subsection I of Chapter 62.6 The district court denied that relief, and Dewalt brought this appeal. Following the district court's ruling on Dewalt's motion for early termination, the State procured a “nunc pro tunc” version of Dewalt's judgment of conviction, and Dewalt subsequently “amended” her notice of appeal to also challenge that ruling.
We conclude that we lack subject-matter jurisdiction over Dewalt's challenge to either ruling. Alternatively, in the event we somehow possess jurisdiction to review one or both rulings, we could not conclude there is reversible error.
Under Subchapter I of Chapter 62, an offender required to register as a “sex offender” other than as a condition of parole or probation 7 may file a motion for early termination of the reporting obligation if he or she has first requested and obtained an “individual risk assessment under Article 62.403.” 8 Article 62.403 directs the Council on Sex Offender Treatment (the Council) to “establish, develop, or adopt an individual risk assessment tool” or group of tools that “evaluates the criminal history of the person required to register” and “seeks to predict” continuing dangerousness and the likelihood of committing further reportable offenses.9 This risk-assessment tool or group of tools, in turn, is to be used by the Council in evaluating offenders intending to seek early termination.10 The Council must also “provide to the person a written report detailing the outcome of [the] evaluation,” i.e., the offender's continuing dangerousness and the likelihood of committing further reportable offenses.11
Article 62.403 further requires that the Council “shall” perform the evaluation and provide the report upon the “written request” of an offender who meets two additional prerequisites: (1) the offender has only a single reportable adjudication or conviction; and (2) that single adjudication or conviction “appears on the list published under Article 62.402(b).” 12 Under article 62.402, the Council by rule is to “determine the minimum required registration period under federal law for each reportable conviction or adjudication under this chapter,” 13 compare these periods to the applicable registration requirement under Texas law, and “compile and publish a list of reportable convictions or adjudications for which a person must register under this chapter for a period that exceeds the minimum required registration period under federal law.” 14 Thus, “the list published under Article 62.402” on which the reportable conviction must appear refers to the one prepared by the Council that identifies reportable convictions or adjudications for which the Texas sex-offender registration statute imposes a longer registration requirement than federal law would. Assuming the offender succeeds in obtaining “an individual risk assessment under Article 62.403,” article 62.404 permits the offender to file a motion for early termination with the trial court that sentenced him or her.15Subsection (b) of article 62.404 requires that the motion must be accompanied by: (1) a certified copy of the written report that the offender obtained under article 62.403; and (2) “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).” 16
Article 62.405, in turn, addresses the trial court's duties and powers upon the filing of a motion for early termination. The trial court “may”—a word that denotes discretion, as Dewalt acknowledges 17—either “deny without hearing the movant's request for early termination” or “hold a hearing ... to determine whether to grant or deny the motion.” 18 Subchapter I provides no further guidance regarding the manner in which the trial court exercises its discretion in choosing between granting a hearing versus denying the motion outright. In this case, the district court opted to hold a hearing on Dewalt's motion.
As for the scope of the court's discretion in deciding the merits of the motion, Subchapter I informs the court only of the following circumstances in which it “may not” grant relief:
(1) “the motion is not accompanied by the document required under Article 62.404(b),” i.e., a certified copy of the written report under article 62.403 and the “written explanation of how the reportable conviction or adjudication ... qualifies as a reportable conviction or adjudication that appears on the list published under Article 62.402(b);” or
(2) “the court determines that the reportable conviction or adjudication for which the movant is required to register under this chapter is not a reportable conviction or adjudication for which the movant is required to register for a period that exceeds the minimum required registration period under federal law.” 19
Nor does Subchapter I expressly confer any right to appeal either the grant or denial of a motion for early termination, and this presents the first of several hurdles to relief that Dewalt cannot overcome. “[I]n Texas, appeals by either the State or the defendant in a criminal case are permitted only when they are specifically authorized by statute.” 20 Stated another way, in criminal cases, “[t]he standard for determining jurisdiction is not whether the appeal is precluded by law, but whether the appeal is authorized by law.” 21 The sole provision authorizing an appeal that appears anywhere in Chapter 62 applies to a trial court's order granting or denying a juvenile's motion to be exempt from sex-offender registration requirements.22 There is no provision in the statute authorizing an appeal from the trial court's grant or denial of a motion for early termination.
Although Dewalt acknowledges that Chapter 62 contains no provision authorizing her to appeal the denial of her motion for early termination, she insists that such a ruling is appealable under Article 44.02 of the Code of Criminal Procedure, the general authorization permitting appeals by criminal defendants.23 While recognizing that 44.02 authorizes appeals only from “final judgments,” 24 Dewalt urges that an appeal from the denial of a motion for early termination is “essentially an appeal from a final judgment.” We disagree. In this context, “final judgment” refers to a final judgment of conviction, as defined by Article 42.01 of the Code—“A judgment is the written declaration of the court signed by the trial judge and entered of record showing the conviction or acquittal of the defendant.” 25 The district court's denial of Dewalt's motion for early termination is not a final judgment of conviction, and is, therefore, not a “final judgment” that can be appealed under article 44.02.
However, Dewalt's primary argument in support of jurisdiction is that the limitations governing criminal appeals are inapplicable here because “sex offender” registration, and her motion for early termination of it, are civil rather than criminal in nature, and that the ruling denying her motion would be appealable under civil law principles. We need go no further than to reject Dewalt's characterization of motions for early termination as civil rather than criminal in nature. As previously indicated, “sex offender” registration is governed by Chapter 62 of the Code of Criminal Procedure, and it is well settled that “[d]isputes which arise over the enforcement of statutes governed by the Texas Code of Criminal Procedure, and which arise as a result of or incident to a criminal prosecution, are criminal law matters.” 26 Additionally, the requirement to register as a sex offender is a result of and incident to a criminal prosecution, and a motion for early termination must be filed in a trial court with jurisdiction over criminal cases—specifically, the trial court that sentenced the offender for the reportable conviction or adjudication.27
Dewalt claims that the Court of Criminal Appeals recognized in Rodriguez v. State28 that motions for early termination are civil rather than criminal in nature. We disagr...
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