Rodriguez v. State

• Decision Date: 18 September 2002
• Docket Number: No. 1164-01.,1164-01.
• Citation: 93 S.W.3d 60
• Parties: Carlos RODRIGUEZ a/k/a Jose Luna, Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

93 S.W.3d 60

Carlos RODRIGUEZ a/k/a Jose Luna, Appellant, v. The STATE of Texas.

No. 1164-01.

Court of Criminal Appeals of Texas.

September 18, 2002.

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Anthony C. Odiorne, Wichita Falls, for appellant.

Barry L. Macha, District Attorney, John W. Brasher, Assist. DA, Wichita Falls, Matthew Paul, State's Attorney, Austin, for state

OPINION

MEYERS, J., delivered the unanimous opinion of the Court.

We are called upon in this appeal to determine whether the retrospective application of Texas's sex offender registration statute to appellant violates the Ex Post Facto Clauses of the United States and Texas Constitutions.¹ U.S. CONST. art. I, § 10; TEX. CONST. art. I, § 16. The Second Court of Appeals held that the retrospective application of the statute to appellant did not constitute an ex post facto violation. Rodriguez v. State, 45 S.W.3d 685 (Tex.App.-Fort Worth 2001). We granted appellant's petition for discretionary review to consider whether the Second Court of Appeals' conclusion with respect to appellant's ex post facto claim was correct.² For the reasons set forth below, we will affirm.

I. Factual and Procedural Background

A. Proceedings Below

On January 26, 1987, appellant was convicted of aggravated sexual assault with a deadly weapon finding and sentenced to seventeen years' confinement. On November 6, 1992, appellant was released on mandatory supervision and given a scheduled release date of March 18, 2003. Because appellant is a Mexican national, he was deported immediately upon release. In 1997, appellant illegally re-entered the United States and moved to Wichita Falls, Texas.

During this period of time, the Texas Legislature made a series of amendments to the sex offender registration and notification statute. Among other changes, the legislature made the registration and notification³ requirements of the statute applicable to all defendants under state supervision who had a reportable conviction occurring on or after September 1, 1970. Act of June 1, 1997, 75th Leg., R.S., ch 668 §§ 1, 11, 1997 Tex. Gen. Laws 2260-61, 2264. Because appellant's offense fell within the definition of "reportable conviction," he was required to register with the local law enforcement agency effective September 1, 1997.⁴ Appellant failed to do so, and on June 30, 1999, he was arrested in Wichita Falls for failure to register as a sex offender. A jury found appellant guilty, and the trial court sentenced him to 540 days' confinement in a state jail.

Appellant then appealed his conviction to the Second Court of Appeals. On appeal, he argued, inter alia, that requiring him to register as a sex offender for life constituted an ex post facto violation. Rodriguez, 45 S.W.3d 685, 687. The court overruled the point of error, explaining that "because the registration requirement is remedial in nature, i.e., a statute enacted for the advancement of the public good, it does not impose `punishment' for constitutional purposes and is not susceptible to an ex post facto claim." Id. at 689 (citations omitted). It is this conclusion we are called upon to review.

B. Statutory Background

Texas's sex-offender registration statute was originally enacted in 1991. Act of June 15, 1991, 72nd Leg., R.S., ch.572, Tex. Gen. Laws 2029-32 (codified at TEX.REV. CIV. STAT. ANN. art. 6252-13c.1). Appellant challenges the amendments that were made to the law in 1997.⁵ In particular, appellant points to the expansion of the class of persons required to report as sex offenders. Prior to the amendments, the class of sex offenders with reportable convictions did not include any defendants who had been convicted prior to 1991. In 1997, however, the Legislature expanded the class to include all those who had a "reportable conviction or adjudication" since September 1, 1970, and who continued to be under some form of state super-vision. TEX.CODE CRIM. PROC. ANN. art. 62.11; §§ 1, 11 1997 Tex. Gen. Laws 2260, 2264. Appellant also complains of the 1997 imposition of lifetime reporting requirements for several listed offenses, including aggravated sexual assault, the offense for which he was convicted. Finally, appellant notes that the legislature redesignated the statute, formerly included in the Texas Revised Civil Statutes, as Chapter 62 of the Texas Code of Criminal Procedure. § 1, 1997 Tex. Gen. Laws 2253.

C. Relevant Law

An ex post facto law: 1) punishes as a crime an act previously committed which was innocent when done; 2) changes the punishment and inflicts a greater punishment than the law attached to a criminal offense when committed; or 3) deprives a person charged with a crime of any defense available at the time the act was committed. Collins v. Youngblood, 497 U.S. 37, 42-44, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990); Ex parte Davis, 947 S.W.2d 216, 219-20 (Tex.Crim.App.1996); Johnson v. State, 930 S.W.2d 589, 591 (Tex.Crim.App.1996). Appellant asserts that requiring him to comply with the Texas sex-offender registration act inflicts greater, or different, punishment upon him than that attached to the offense at the time it was committed. We must therefore determine: 1) whether the statute is being applied retroactively; and 2) whether its provisions constitute punishment for constitutional purposes. Because the State concedes the statute's retrospective application, we direct our attention solely to the question of whether the 1997 amendments to Texas's sex-offender registration statute constitute punishment for constitutional purposes. This question can be answered by application of what is known as the "intent-effects" test. See Doe v. Otte, 259 F.3d 979, 985 (9th Cir. 2001), cert. granted, 534 U.S. 1126, 122 S.Ct. 1062, 151 L.Ed.2d 966 (2002).

Under the "intent-effects test," a reviewing court must first ask whether the legislature intended the statute to be a criminal punishment. "Whether a particular punishment is criminal or civil is, at least initially, a matter of statutory construction. A court must first ask whether the legislature, in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other." Hudson v. United States, 522 U.S. 93, 99, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997) (citations and internal quotation marks omitted).⁶ A reviewing court must afford a high level of deference to the legislature's stated aims in passing the statute. Id. at 101, 118 S.Ct. 488 (cautioning that courts must consider effects of statute "in relation to the statute on its face" and that "only the clearest proof will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty") (citations and internal quotation marks omitted).

If the legislature manifests an expressly punitive intent, the inquiry is at an end and the statute is a violation of the ex post facto clause. Kennedy v. Mendoza-Martinez, 372 U.S. 144, 169, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963). If the legislature intends to establish a civil remedy, a reviewing court then examines "whether the statutory scheme [is] so punitive either in purpose or effect as to transform what was clearly intended as a civil remedy into a criminal penalty." Hudson, 522 U.S. at 99, 118 S.Ct. 488 (citations and internal quotation marks omitted). The legislature's manifest intent will be rejected only where the party challenging the statute provides "the clearest proof' that the statute is actually criminally punitive in operation. Kansas v. Hendricks, 521 U.S. 346, 361, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997). The Supreme Court has stated:

[T]he mark of an ex post facto law is the imposition of what can fairly be designated punishment for past acts. The question in each case where unpleasant consequences are brought to bear upon an individual for prior conduct, is whether the legislative aim was to punish that individual for past activity, or whether the restriction of the individual comes about as a relevant incident to a regulation of a present situation....

De Veau Braisted, 363 U.S. 144, 160, 80 S.Ct. 1146, 4 L.Ed.2d 1109 (1960).

To evaluate whether the effects of a statute are criminally punitive, courts generally look to the factors set forth by the Supreme Court in Kennedy, 372 U.S. at 169, 83 S.Ct. 554 (the "Kennedy factors").⁷ Courts consider: (1) whether the sanction involves an affirmative disability or restraint; (2) whether it has traditionally been regarded as a punishment; (3) whether it comes into play only on a finding of scienter; (4) whether its operation will promote the traditional aims of punishment — retribution and deterrence; (5) whether the behavior to which it applies is already a crime; (6) whether an alternative purpose to which it may rationally be connected is assignable to it; and (7) whether it appears excessive in relation to the alternative purpose assigned. 372 U.S. at 168-69, 83 S.Ct. 554.

Courts have taken various approaches with respect to these factors.⁸ The Supreme Court has never explicitly adopted the Kennedy factors for application in the ex post facto context. Nonetheless, the Court applied many of the factors in the context of the ex post facto challenge raised in Hendricks. In reviewing the double jeopardy claim raised in Hudson, the Court explained that the factors are "useful guideposts" but that none are dispositive. 522 U.S. at 99, 101, 118 S.Ct. 488. We will consider each of the useful guideposts the Supreme Court provided to us in Kennedy. Furthermore, because "our task is not simply to count the factors, but to weigh them," we will also discuss the varying weight to be afforded to each factor. See Arizona v. Noble, 171 Ariz. 171, 829 P.2d 1217, 1224 (1992).

II. Application

A. Intent of the 1997 amendments

The State provides considerable support for the proposition that the sex offender registration statute was enacted to...