            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                       NO. PD-0145-09



             EX PARTE JOHN CHRISTOPHER COVEY, JR., Appellant



        ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
              FROM THE ELEVENTH COURT OF APPEALS
                          NOLAN COUNTY

       C OCHRAN, J., filed a concurring opinion in which J OHNSON, J., joined.

                                          OPINION

       I agree that appellant is entitled to relief, although I have serious doubts that his trial

attorney provided constitutionally deficient assistance. This is a case in which nobody–not

appellant, his trial or habeas attorney, the trial judge, or the prosecutor–was quite correct in

his understanding of the sex-offender-registration laws. From the very beginning until after

the conclusion of the hearing on the habeas corpus application, all of the participants

erroneously believed that applicant had an obligation to register as a sex offender for life.

Furthermore, from the very beginning until after the conclusion of the plea proceeding, all
                                                            Covey     Concurring Opinion      Page 2

of the participants erroneously believed that the trial judge had the discretion to terminate the

sex-offender-registration requirement early.1 I have a difficult time swallowing the finding

that appellant’s trial attorney was constitutionally incompetent if the prosecutor and trial

judge had precisely the same misunderstanding about the law that he did.

       It was not until the prosecutor investigated the sex offender registration statutes more

carefully on direct appeal that the “correct” law was discovered.2 Appellant does not have

a lifelong obligation to comply with the sex offender registration requirements. Under Texas



       1
          Indeed, the trial judge innocently, but erroneously, compounded the problem when
appellant asked, “It says that there’s a chance of getting taken off of the sexual offender earlier
than probation is up. What’s–what are the rules on that?”
        The trial judge responded: “Discretionary with the Court. So, there’s not like a checklist
that you can do and automatically get anything done. There are really no promises to you other
than that it’s subject to being reviewed.”
        Earlier in the hearing, appellant had asked whether the rule prohibiting him from using
the Internet might be changed in the near future. The trial judge told him the following:
        Any of these rules could change. They could be lifted; there could be more
        restrictions placed on you while you’re on probation. It’s certainly something that
        is reviewed, but there are no guarantees, so you might just have the mind set this
        is the way it’s going to be. If it gets better, great; if it doesn’t, you’re not–I don’t
        want you to feel like you were tricked in any way. Expect the worst as far as what
        these restrictions are on you, and if something else works out—
Appellant then asked, “Who changes those restrictions?” And the trial judge responded, “I do.”
        It is no wonder that appellant believed that he had a chance to apply for, and might
receive, early termination of the sex offender registration requirement if he complied faithfully
with all of the requirements of his community supervision. During this plea hearing, appellant
explained that the incident for which he was indicted occurred while he was so intoxicated that
he had no memory of the event, so he could not defend himself. He stated that he had been
“sober” for eight months, and thus he might reasonably think that he would be a good candidate
for early termination if he continued to address his drinking problem.
       2
         State’s Brief on Direct Appeal at 3 (“[A]ppellant is not subject to lifetime registration as
attempted sexual assault is not a sexually violent offense, nor does it fall into any other category
requiring lifetime registration. A deferred adjudication for attempted sexual assault falls into the
category that requires registration for ten years after release from community supervision.”).
                                                          Covey     Concurring Opinion     Page 3

law, his obligation lasts for the duration of the community-supervision period–eight

years–plus ten years thereafter.3 Indeed, as the court of appeals noted, “This mistake by

[habeas] counsel [that appellant had a lifelong registration requirement] indicates that

appellant’s original counsel’s advice was within the range of competence demanded of

attorneys in criminal cases.” 4 In other words, numerous reasonable attorneys make mistakes

in deciphering the sex offender registration requirements. They are very complex.

       I also agree with the prosecutor and the court of appeals that appellant is not

necessarily precluded from filing for and obtaining early termination of his sex offender

registration requirements under article 62.402-62.408 5 before the end of the current eighteen-

year registration obligation. Apparently, the Council on Sex Offender Treatment has not

published a list of reportable offenses for which one could request early termination, but that

is not to say that appellant would definitely never qualify for release under the subchapter

dealing with early termination if the law changes during this period.6


       3
        T EX . CODE CRIM . PROC. art. 62.101(b).
       4
     Covey v. State, No. 11-08-00190-CR, 2008 WL 5205641 at *3 n.1 (Tex.
App—Eastland, Dec. 11, 2008) (not designated for publication).
       5
        T EX . CODE CRIM . PROC. art. 62.401-62.408.
       6
        T EX . CODE CRIM . PROC. art. 62.401-62.408. The court of appeals noted that “appellant
has not shown that he is precluded from filing a motion for early release during the eighteen
years.” Covey, 2008 WL 5205641, at *7. It would seem that, under art. 62.402, the Council is
required to publish only a list of those Texas offenses for which the minimum registration period
exceeds that assessed under federal law. If the minimum is the same or less than the federal
requirement, there is no need to list the offense. For attempted sexual assault, the registration
periods are the same under state and federal law–ten years after release from prison, parole, or
community supervision. 42 U.S.C. § 14071(6) (A). Thus, it would appear that appellant cannot
                                                             Covey     Concurring Opinion        Page 4

       That said, the trial judge entered written findings of fact that would support both a

finding of ineffective assistance of trial counsel and a finding of detrimental reliance upon

his “erroneous” advice.7 Apparently, the only reason that the trial judge did not grant relief

on appellant’s writ application was that he concluded that sex offender registration was “of

such a non-punitive nature” that appellant was not “harmed” by his counsel’s erroneous

advice.8 I disagree with that legal conclusion because “harm” is not really the correct issue

in this context.

       When a defendant challenges the voluntariness of his plea, arguing that he entered that


request early termination of the sex-offender-registration requirement under subchapter I unless
the legislature changes these statutes within the next eighteen years, with sex-offender-
registration laws becoming more or less onerous as public policy and social attitudes shift over
time.
       7
           The Court quotes, and relies upon, findings 3, 6, and 7. See Slip. Op. at 5-6.
       8
        The trial judge ended the habeas hearing by stating:
               And the fact that the defendant was under the impression and that
       impression confirmed that there was a possibility he could be released from what
       he knew to be a life-time registration, a possibility, certainly didn’t indicate it was
       guaranteed he would be released, I certainly find that the Defendant’s information
       and incorrect information was confirmed through defense counsel and from the
       Court, did nothing to clear that up.
               But, it being of such a non-punitive nature that based upon the testimony
       of the Defendant, the demeanor and the credibility of his testimony that this is
       something that I don’t feel is – that the harm has been established to warrant
       granting the Defendant’s Writ of Habeas Corpus, which is in all things denied.

The trial judge’s written conclusions of law conclude with the following:
        Because the registration requirements of Chapter 62 C.C.P. are remedial and not
        punitive, and because relief under Art. 62.404 C.C.P. is speculative and
        furthermore, because Applicant believed that [a] jury would have convicted him,
        the legal significance of the bad advice complained of by Applicant is
        substantially discounted. Under these circumstances, the bad advice is not
        sufficient to support a claim of involuntary plea.
                                                            Covey     Concurring Opinion     Page 5

plea based upon inaccurate or “legally bad” advice from his counsel, he must show that

       (1)       his counsel’s claim was not within the range of competence demanded of
                 attorneys in criminal cases; and

       (2)       there is a reasonable probability that, but for counsel’s error, he would not
                 have pleaded guilty, but would have insisted upon going to trial.9

In his findings, the trial judge unequivocally stated, “If Applicant ha[d] not been erroneously

advised, it is more probable than not that Applicant would have pleaded ‘not guilty.’” And

because this finding is clearly supported by the record, we should adopt it.10

       Although the trial judge correctly noted that sex offender registration is a matter that

the law categorizes as “non-punitive” and “remedial,” 11 the record shows that appellant

believed that the sex offender requirements, especially registration, were both punitive and

of primary importance to him in entering a plea to the attempted-sexual-assault charge.12 His


       9
         Hill v. Lockhart, 474 U.S. 52, 58-59 (1985); Ex parte Moody, 991 S.W.2d 856, 857-58
(Tex. Crim. App. 1999).
       10
            See Ex parte Reed, 271 S.W.3d 698, 727 (Tex. Crim. App. 2008).
       11
           See Smith v. Doe, 538 U.S. 84, 105-06 (2003) (concluding that Alaska’s sex offender
registration requirement was a non-punitive regulatory scheme that did not violate ex post facto
clause); Mitschke v. State, 129 S.W.3d 130, 136 (Tex. Crim. App. 2004) (“[A]lthough the sex-
offender registration requirement is a direct consequence of appellant’s plea, it is a non-punitive
measure, and failure to admonish does not necessarily render a plea involuntary.”).
       12
          Appellant’s original community-supervision requirements included the following:
16.    Defendant shall attend and participate in a sex offender treatment program as directed by
       the supervision officer. Defendant shall keep all appointments, follow all rules and
       regulations, and shall not cease participation in said program until released by the court.
17.    Register with your local municipal or county law enforcement agency as a sex offender
       within 7 days after being placed on probation as required by Article 6252-13C.1 R.S., and
       if you move to a new residence, or change employment, report any changes to the
       registering agency within 7 days;
                                                          Covey     Concurring Opinion     Page 6

position that the onerous registration requirement was personally punitive is supported by the

record, especially because he believed that the registration requirement was lifelong. Given

the draconian nature of the registration requirement and the obloquy, harassment, and even

violence that frequently follows in the wake of public notification and internet availability

of sex registrants’ names, addresses, employers, etc., it is not surprising that appellant would

rather roll the dice on a jury trial than sign up for what he believed to be the lifelong public

disgrace of sex offender registration.

       Therefore, I join the Court’s opinion that appellant’s plea was involuntary based upon




18.    Each year, the defendant on or before his birthday, update his registration paperwork with
       the registering agency and continue until directed otherwise;
19.    Defendant shall contact the Texas Department of Public Safety within 30 days from being
       placed on probation, to obtain his sex offender drivers license or ID card, and is to renew
       them on or before his/her birthday each year thereafter until told otherwise;
20.    Defendant shall not reside in any household with any child, male or female, under
       seventeen (17) years of age. Written permission of this court is required to modify this
       order;
21.    Defendant shall not supervise or participate in any employment or any program that
       includes as participants or recipients persons who are 17 years of age or younger and that
       regularly provides athletic, civic, or cultural activities;
22.    Defendant shall not go into or within a distance of 1,000 feet of any premises where
       children commonly gather, including a school, day-care facility, playground, public or
       private youth center, public swimming pool, or video arcade facility;
23.    Defendant shall not use pornography or erotica or frequent adult book stores, sex shops,
       topless bars, massage parlors and like establishments;
24.    Defendant shall attend the 32nd Judicial District CSCD sex offender counseling and pay
       counseling fees as directed;
29.    Defendant shall not have access to a computer, web TV, PDA, smart phone, or any other
       device(s) that provide access to the internet unless written permission from the court is
       granted;
30.    Defendant shall not have cable TV or satellite that [subscribes] to the premiere channels,
       i.e., HBO, Cinemax, Showtime, etc., that allows him/her to view pornographic or
       sexually explicit material[.]
                                        Covey   Concurring Opinion   Page 7

his trial counsel’s erroneous advice.

Filed: March 31, 2010

Do Not Publish
