Weatherly v. State

• Decision Date: 07 January 2021
• Docket Number: No. 02-19-00394-CR,02-19-00394-CR
• Parties: ROHN M. WEATHERLY, Appellant v. THE STATE OF TEXAS
• Court: Texas Court of Appeals

ROHN M. WEATHERLY, Appellant v. THE STATE OF TEXAS

No. 02-19-00394-CR

Court of Appeals Second Appellate District of Texas at Fort Worth

January 7, 2021

On Appeal from the 371st District Court Tarrant County, Texas

Trial Court No. 1380491D

Dissenting Memorandum Opinion by Justice Wallach

DISSENTING MEMORANDUM OPINION

Today, the majority holds that it has no jurisdiction or authority to address appellant Rohn M. Weatherly's constitutional challenge to the statutory requirement that he register as a sex offender even though his offense involved no sexual misconduct. I respectfully lodge my dissent to both holdings. Weatherly timely noticed his appeal at the first opportunity to do so—when those restrictions were imposed—which invoked this court's jurisdiction. We are authorized to address the merits of Weatherly's appellate issue because he is directly attacking the validity of the nunc pro tunc order itself, not his underlying conviction and sentence. Additionally, and based on my review of the sex-offender registration program (SORP), I would disagree with the trial court and would hold that the application of the SORP to Weatherly's nonsexual offense violated his due-process rights because its application is not rationally related to the government's interest in the SORP—the need for heightened public awareness of and protection from sexual offenders.

I. JURISDICTION AND AUTHORITY TOADDRESS WEATHERLY'S CONSTITUTIONAL ISSUE

As the majority points out, the SORP findings were not imposed until the fourth nunc pro tunc order, which was signed in October 2019—almost four years after his January 2016 conviction for unlawful restraint of a child younger thanseventeen.¹ See Tex. Penal Code Ann. § 20.02. Before this order, Weatherly's judgment recited that the SORP "[r]equirements do not apply to the Defendant" and that the age of the victim was "N/A." On the basis of this judgment, Weatherly appealed and unsuccessfully argued that his guilty plea was neither knowing nor voluntary. Weatherly v. State, Nos. 02-16-00026-CR, 02-16-00027-CR, 2016 WL 7157300, at *2-5 (Tex. App.—Fort Worth Dec. 8, 2016, no pet.) (mem. op., not designated for publication).

Years after our appellate mandate issued, the State filed a motion for entry of a nunc pro tunc order, arguing that because Weatherly's conviction was reportable under the SORP, the judgment should be corrected to add the SORP findings. See Tex. Code Crim. Proc. Ann. art. 42.01, § 1(27), arts. 62.001(5)(E), 62.051(a). Five days later, Weatherly objected to the State's request and filed a motion to declare the SORP requirements unconstitutional as applied to him because his offense had not been sexually motivated. The trial court denied Weatherly's motion but entered the nunc pro tunc order, adding the statutory SORP findings. Weatherly timely noticed his appeal and again argues that the SORP requirements are unconstitutional as applied, rendering the nunc pro tunc order invalid.

A. JURISDICTION

The majority holds that this court does not have "jurisdiction" over Weatherly's appeal from the fourth nunc pro tunc order. I disagree. The judgment of conviction for Weatherly's nonsexual offense did not reflect that he was subject to the sex-offender restrictions until more than two years after our mandate issued affirming Weatherly's conviction. This was his first opportunity to challenge the validity of the nunc pro tunc order and started Weatherly's appellate timetable. See Williams v. State, 603 S.W.3d 439, 446-47 (Tex. Crim. App. 2020) ("When an appealable order arises outside of the 'ordinary' appellate context, issues related to the order cannot be added to the direct appeal because at that point it is too late to include those issues with the direct appeal. Therefore, they must be raised in a separate appeal.").² Weatherly filed his notice of appeal less than thirty days after the fourth nunc pro tunc order was entered; thus, we have jurisdiction over the appeal. See Tex. R. App. P. 26.2(a)(1); Blanton v. State, 369 S.W.3d 894, 904 (Tex. Crim. App. 2012).

B. AUTHORITY

The majority also casts doubt on this court's "authority" to address the merits of Weatherly's claim. In other words, the majority narrows the scope of this court's review. See Barnett v. State, No. 06-14-00149-CR, 2015 WL 5999663, at *2 (Tex. App.—Texarkana July 24, 2015, pet. ref'd) (mem. op., not designated for publication)("Barnett's appeal of the judgment nunc pro tunc is timely. That said, the scope of an appeal from the entry of a nunc pro tunc judgment is limited."). I agree with the majority that in an appeal from a nunc pro tunc order, a defendant cannot challenge his or her underlying conviction and sentence. See, e.g., Cunningham v. State, 322 S.W.2d 538, 540 (Tex. Crim. App. 1959). The scope of this court's review is, instead, limited to the "validity of the nunc pro tunc entry." Moore v. State, 446 S.W.2d 878, 879 (Tex. Crim. App. 1969) (emphasis added).

In my estimation, Weatherly's complaint is well within the permissible scope of this court's review of the nunc pro tunc order. See Ex parte Weatherly, No. WR-61,215-09, 2020 WL 913277, at *1 (Tex. Crim. App. Feb. 26, 2020) (per curiam) (not designated for publication) (dismissing Weatherly's postconviction habeas corpus application without prejudice based on "his [pending] appellate remedies with regard to the judgment nunc pro tunc" and recognizing some of Weatherly's habeas claims involved "the validity of the judgment nunc pro tunc"); Evans v. State, Nos. 07-17-00249-CR, 07-17-00250-CR, 07-17-00251-CR, 2018 WL 5305500, at *1-3 (Tex. App.—Amarillo Oct. 25, 2018, pet. ref'd) (mem. op., not designated for publication) (addressing merits of constitutional challenges to deadly-weapon findings entered in "later" nunc pro tunc judgments).³ Weatherly is clearly challenging the nunc pro tuncorder adding the SORP findings, not the propriety of his underlying conviction and fifteen-year sentence. See Ex parte Curry, 712 S.W.2d 878, 880 (Tex. App.—Austin 1986, no pet.). Specifically, he is attacking the constitutional validity of the nunc pro tunc order, which we can and should address. See Cunningham, 322 S.W.2d at 540; cf.Harrelson v. Swan, 381 F. App'x 336, 338-39 (5th Cir. 2010) (per curiam) (acknowledging that appeal challenging effect of nunc pro tunc order's language is not a collateral attack on original conviction even though "original judgments by necessity were germane to the case"); Jones v. State, 795 S.W.2d 199, 202 n.6 (Tex. Crim. App. 1990) (recognizing appeal from nunc pro tunc order must be limited to its validity, "at least under circumstances where no appeal was attempted from the original judgment").

I also believe our authority is apparent from a logistical standpoint. When was Weatherly supposed to challenge the trial court's denial of his motion to declare the SORP facially unconstitutional or to attack the addition of the SORP findings? Certainly not before the motion was filed and determined or before the findings were entered. The majority evidently seems to think so, as shown by its holding that this court has neither jurisdiction nor authority. This position would seem to violate Weatherly's right to procedural due process by denying him a meaningful opportunity to be heard on the issue in a timely appeal from the order under attack. See generally Evitts v. Lucey, 469 U.S. 387, 393, 105 S. Ct. 830, 834 (1985) (holding that if state creates appeals as of right, those appeals must comport with due-process and equal-protection guarantees).

I disagree with the majority that a postconviction habeas corpus writ would satisfy due process by hypothetically allowing Weatherly to attack counsel's alleged failure to tell him about the applicability of the SORP to his conviction. Such a writmust challenge the fact or duration of confinement to be cognizable. See, e.g., In re Daniel, 396 S.W.3d 545, 548 (Tex. Crim. App. 2013) (orig. proceeding); Ex parte Rieck, 144 S.W.3d 510, 519 (Tex. Crim. App. 2004). Weatherly challenges neither; thus, this postconviction avenue arguably could be closed to him. The Texas Court of Criminal Appeals seemed to indicate just that by recognizing that Weatherly's postconviction attacks were challenges to the order's validity and by dismissing his habeas corpus application in favor of this appeal. Weatherly, 2020 WL 913277, at *1.

According to the majority, Weatherly could argue in such a writ that counsel was ineffective for failing to inform him of the applicability of the SORP. However, that suggestion would require Weatherly to raise a claim substantively different from the claim he raises today and would wholly fail to address Weatherly's current constitutional claim or the trial court's denial of his motion seeking to block the entry of the SORP findings. Weatherly chose his method and angle of attack, which we have the jurisdiction to address based on his timely notice of appeal and the authority to address based on his validity challenge to the nunc pro tunc order. See Blanton, 369 S.W.3d at 904 ("A nunc pro tunc judgment is an appealable order under Article 44.02 if the appeal is timely filed. Because Appellant filed his appeal within the time limits of Rule 26.2, the [appellate court] has jurisdiction to consider the merits of Appellant's appeal."); Cunningham, 322 S.W.2d at 540 (holding appeal from nunc pro tunc order "is limited to the validity of the nunc pro tunc entry"). The majority's attempt to choose Weatherly's issue and advise him how and where to argue it straysoutside the boundaries of this court's duties. See, e.g., Meyer v. State, 310 S.W.3d 24, 26 (Tex. App.—Texarkana 2010, no pet.). In any event, whether or not Weatherly has the ability to file a habeas corpus application or any other procedural device such as a mandamus petition is not relevant. I am not contending that Weatherly's timely appeal is his only remedy; in fact, it may not be. My contention is that because Weatherly...