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Affirmed
and Opinion filed May 18, 2004.
 
                                                                                                                                                            
 
 
In The
 
Fourteenth Court of Appeals
____________
 
NO. 14-03-00396-CR
____________
 
MICHAEL RAY MANN, Appellant
 
V.
 
THE STATE OF TEXAS, Appellee
 

 
On Appeal from the 338th
District Court
Harris County, Texas
Trial Court Cause No. 906,704
 

 
O P I N I O N




Appellant Michael Ray Mann was convicted
by a jury of sexual assault and sentenced to two years in the Texas Department
of Criminal Justice, Institutional Division. 
In his sole issue on appeal, appellant claims he received ineffective
assistance of counsel due to trial counsel=s failure to seek
an exemption from the statutorily-mandated requirement that appellant register
as a sexual offender.  Appellant requests
that we vacate the district court=s judgment and
remand this cause to the trial court for a hearing to determine whether
appellant should be exempt from the sex-offender registration requirement.  We decline to do so and affirm the trial
court=s judgment.
Article 62.02 of the Texas Code of
Criminal Procedure (ACode@) provides, in
pertinent part, as follows:
A person who has a
reportable conviction or adjudication or who is required to register as a
condition of parole, release to mandatory supervision, or community supervision
shall register . . . with the local law enforcement authority in any municipality
where the person resides or intends to reside for more than seven days.
Tex. Code Crim. Proc. Ann. art. 62.02(a)
(Vernon Supp. 2003).  The definition of Areportable
conviction or adjudication@ includes a
conviction of sexual assault, as defined by section 22.011 of the Penal
Code.  Id. art. 62.01(5).  Appellant was convicted of sexual
assault.  Furthermore, appellant, who was
18 years of age at the time of the offense, committed a sexually violent
offense, as defined by article 62.01(6) of the Code.  See id. art. 62.01(6) (defining
Asexually violent
offense@ as including
offense of sexual assault, as defined by section 22.011 of the Penal Code,
committed by person 17 years of age or older). 
Because appellant committed a sexually violent offense, the duty to
register exists until his death.  See
id. art. 62.12(a).




Appellant argues that because he was 18
years old at the time of the offense, he is entitled to an exemption from the
registration requirement.  Article 62.105
of the Code provides that a defendant who is nineteen years of age or younger
can petition the court having jurisdiction over the case for an order exempting
the person from registration at any time after the person=s sentencing or
after the person is placed on deferred adjudication community supervision.  See id. art. 62.0105 (a)-(d).  A court may, but is not required, to issue an
order exempting a person from registration if certain requirements, as set
forth in article 62.0105, are met.  See
id. art. 62.0105(d).[1]
Appellant argues that because counsel is
required at every critical stage in the proceedings after a formal accusation
is made by indictment or information, it is reasonable to conclude that a
defendant is entitled to counsel when addressing the question of a possible
exemption from the sex-offender registration requirement.  The State counters that appellant does not
have a constitutional right to counsel with respect to requesting an exemption
from the sex-offender registration requirement and that appellant was not
prejudiced by his trial counsel=s failure to
petition for an exemption.  We hold that
a defendant does not have a constitutional right to counsel after sentencing
for the purpose of requesting an exemption from the sex-offender registration
requirement.  Therefore, a defendant
cannot assert a claim that his or her counsel was ineffective for failing to
request such an exemption.




This appears to be an issue of first
impression in Texas.  Nonetheless, Texas
courts have discussed when a criminal defendant has a constitutional right to
counsel.  The attachment of the
constitutional right to counsel occurs at all critical stages of
prosecution.  Wesbrook v. State,
29 S.W.3d 103, 117 (Tex. Crim. App. 2000). 
AWhether a
particular part of the trial process is a >critical stage= is determined not
by whether the defendant suffered prejudice by the absence of counsel during
that part of the proceedings, but rather, whether critical rights of a
defendant can be lost at the stage in question.@  Medley v. State, 47 S.W.3d 17, 22
(Tex. App.CAmarillo 2000, pet. ref=d).  It is well established that a criminal
defendant does not have a constitutional right to counsel in a post-conviction
collateral attack.  See, e.g., Winters
v. The Presiding Judge of the Crim. Dist. Ct. Num. Three of Tarrant County,
118 S.W.3d 773, 774 (Tex. Crim. App. 2000) (citations omitted).  There is no constitutional right to effective
assistance of counsel on a writ of habeas corpus.  Ex parte Graves, 70 S.W.3d 103, 110
(Tex. Crim. App. 2002).  In short, a  convicted person does not have a
constitutional right to any counsel in either discretionary appeals or on writs
of habeas corpus.  Id.  The court in Graves explained that A[t]he fact that an
appeal has been provided does not automatically mean that a State then acts
unfairly by refusing to provide counsel to indigent defendants at every stage
of the way.@  Id.
at 110B11.  AIn sum, simply
because a state provides for the possibility of a particular procedure or
remedy, it does not inexorably follow that the state must also provide legal
counsel to one seeking to pursue that remedy.@  Id.
With that discussion in mind, we turn to
the question at hand.  The Court of
Criminal Appeals very recently decided in Mitschke v. State that
although the sex-offender registration requirement is a direct consequence of
an appellant=s plea of guilty to indecency with a
child, Ait is a
non-punitive measure.@ 
No. 2243-01, 2004 WL 438394, at *5 (Tex. Crim. App. March 10,
2004).  Accordingly, the failure of a
trial court to admonish a defendant as to the required registration as a sex
offender does not render a plea involuntary. 
Id.  In Mitschke,
the court held that the failure to admonish a criminal defendant as to a
direct, non-punitive consequence of his plea, specifically, the sex-offender
registration requirement, does not violate due process or render a plea
involuntary.  Id.  In discussing its non-punitive measure, the
court compared the sex-offender registration requirement to other non-punitive,
direct consequences of a plea of guilty, such as the loss for a period of years
of the right to vote and the right to possess firearms.  Id. at *4.




Because the sex-offender registration
requirement is a non-punitive or Aremedial and civil@ direct
consequence of a plea of guilty, see id., or, as in this case, a
conviction of sexual assault, it logically follows that the right to request an
exemption from the sex-offender registration requirement post-sentencing is not
a critical stage of the proceeding. 
Therefore, the constitutional right to counsel does not attach to a
convicted defendant=s request for an exemption from the
sex-offender registration requirement. 
Thus, a convicted defendant cannot raise an ineffective assistance of
counsel claim due to his or her trial counsel=s failure to
request an exemption from the sex-offender registration requirement.
Having overruled appellant=s sole point of
error, the judgment of the district court is affirmed.
 
/s/      Leslie Brock Yates
Justice
 
 
Judgment
rendered and Opinion filed May 18, 2004.
Panel
consists of Justices Yates, Anderson, and Hudson.
Publish
C Tex. R. App. P. 47.2(b).
 
 




[1]  Article
62.0105 refers to article 42.017 and section 5(g) of article 42.12.  Both of those provisions contain essentially
the same language.  Article 42.017
applies to defendants found guilty of sexual assault and states that the judge
shall make an affirmative finding of fact in the judgment in a case if the
judge determines that A(1) at the time of the offense, the defendant was
younger than 19 years of age and the victim was at least 13 years of age; and
(2) the conviction is based solely on the ages of the defendant and the victim
or intended victim at the time of the offense.@  Tex.
Code Crim. Proc. Ann. art. 42.017 (Vernon Supp. 2003).  Because of our disposition of this appeal on
the ground that there is no constitutional right to counsel after sentencing to
request an exemption from the sex-offender registration requirement, we need
not address appellant=s argument that the conviction in this case was based solely
on the ages of appellant and his victim.


