                                                                       PD-1121-15
                                                    COURT OF CRIMINAL APPEALS
                                        Oral   argument  requested   AUSTIN, TEXAS
                                                    Transmitted 9/24/2015 4:49:58 PM
                                                      Accepted 9/24/2015 5:02:01 PM
                                                                      ABEL ACOSTA
                         PD-1121-15                                           CLERK

       IN THE TEXAS COURT OF CRIMINAL APPEALS
   _________________________________________________

                     EX PARTE
                   MICAH TUTTON
                      APPELLANT
   _________________________________________________

            FROM THE TENTH COURT OF APPEALS
               CAUSE No. 10-14-00360-CR

        APPEAL FROM THE 40TH DISTRICT COURT OF
        ELLIS COUNTY, TEXAS, CAUSE NO. 34649CR
   _________________________________________________

         APPELLANT’S PETITION FOR
          DISCRETIONARY REVIEW
   _________________________________________________


BRUCE ANTON                     SORRELS, UDASHEN & ANTON
State Bar No. 01274700          2311 Cedar Springs, Suite 250
ba@sualaw.com                   Dallas, Texas 75201
                                214-468-8100 (office)
BRETT ORDIWAY                   214-468-8104 (fax)
State Bar No. 24079086
bordiway@sualaw.com             Counsel for Appellant




    September 24, 2015
                    Grounds for Review

 I.!   Whether an applicant-appellant must anticipate
       and counter the district court’s reasoning in re-
       jecting his application in order to preserve his
       complaint as to that reasoning for review.

II.!   Whether the court of appeals incorrectly conclud-
       ed that Tutton’s evidentiary support was not be-
       fore the district court.




                              2
                                           Table of Contents

Grounds for Review..................................................................................... 2!

   I.! Whether an applicant-appellant must anticipate and counter the
   district court’s reasoning in rejecting his application in order to
   preserve his complaint as to that reasoning for review. ....................... 2!

   II.! Whether the court of appeals incorrectly concluded that Tutton’s
   evidentiary support was not before the district court. .......................... 2!

Table of Contents ........................................................................................ 3!

Index of Authorities .................................................................................... 5!

Identity of Parties and Counsel ................................................................. 6!

Statement Regarding Oral Argument ....................................................... 7!

Statement of the Case and Procedural History......................................... 8!

Argument................................................................................................... 10!

      I.!    Background ................................................................................. 10!

      II.! A habeas corpus applicant cannot be required to anticipate the
      district court’s reasoning in rejecting his application in order to
      preserve his claim for review ............................................................ 14!

      III.! The court of appeals incorrectly concluded that the necessary
      evidentiary support was not before the district court ..................... 17!

      IV.!       Conclusion ............................................................................... 18!

Prayer ........................................................................................................ 18!

Certificate of Service ................................................................................. 20!



                                                        3
Certificate of Compliance ......................................................................... 20!

Appendix .................................................................................................... 21!




                                                       4
                                       Index of Authorities

Cases
Ex Parte Tutton, No. 10-14-00360-CR, 2015 WL 4384496 (Tex. App.—
  Waco 2015) ............................................................................. 9, 13, 14, 17
Henson v. State, 794 S.W.2d 385, 401 (Tex. App.—Dallas 1990, pet.
  ref’d) ....................................................................................................... 15
Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992) ............ 16
Resendez v. State, 306 S.W.3d 308, 318 (Tex. Crim. App. 2009) ............ 16
State v. Saavedra, 13-04-400-CR, 2005 WL 1714296 (Tex. App.—Corpus
  Christi 2005, no pet.) ............................................................................. 15
Turcar, LLC v. I.R.S., 451 F. App’x 509, 513 (6th Cir. 2011) ................. 15
United States v. White, 704 F. Supp. 90, 93 (E.D.N.C. 1989) ................. 15


Statutes
TEX. CRIM. PROC. CODE § art. 62.102 .................................................... 8, 11


Other Authorities
Tex. Att’y Gen. Op. GA-0772 (2010) ......................................................... 14


Rules
TEX. R. APP. P. 33.1 ................................................................................... 16
37 TEX. ADMIN. CODE § 87.85(g) (2009) .................................................... 14




                                                        5
                  Identity of Parties and Counsel

For Appellant Micah Tutton:

     BRUCE ANTON
          Trial counsel of record
     SORRELS, UDASHEN & ANTON
     2311 Cedar Springs, Suite 250
     Dallas, Texas 75201

     BRUCE ANTON
     BRETT ORDIWAY
         Appellate counsel of record
     SORRELS, UDASHEN & ANTON

For Appellee the State of Texas:

     CYNTHIA W. HELLSTERN
          Trial and appellate counsel of record
     ELLIS COUNTY DISTRICT ATTORNEY’S OFFICE
     109 S. Jackson
     Waxahachie, Texas 75165

Trial court:

     40TH JUDICIAL DISTRICT COURT OF ELLIS COUNTY, TEXAS
     THE HONORABLE BOB CARROLL PRESIDING




                                   6
               Statement Regarding Oral Argument

     The court of appeals in this case effectively held that a habeas

corpus applicant must anticipate the district court’s reasoning in reject-

ing his application in order to preserve his claim for review. This hold-

ing is, of course, enormously impactful on the thousands of annual ha-

beas applicants. Tutton respectfully requests this Court to grant oral

argument so that this important issue can be fully considered.




                                    7
           Statement of the Case and Procedural History

       On the advice of his attorney, Tutton pleaded guilty to failing to

comply with the registration requirements of the Sex Offender Registra-

tion Program. See TEX. CRIM. PROC. CODE § art. 62.102; (CR: 3). Only af-

ter being sentenced to five years’ community supervision did Tutton

learn he was never required to register. (CR: 28-29, 52).

       Accordingly, Tutton filed an application for a writ of habeas cor-

pus, pursuant to Article 11.072 of the Code of Criminal Procedure, in

which he alleged that: (1) he was actually innocent, (2) his plea was in-

voluntary, and (3) he received ineffective assistance of counsel because

Slaton inadequately investigated the matter. (CR: 54). The State disa-

greed. Tutton was required to register, the State contended, and the

district court, following the State, rejected Tutton’s application. (CR:

64).

       On appeal to the Tenth Court of Appeals, Tutton argued the

distirct court was wrong. (Ap. Br. at 9). In an opinion released July 9,

2015, the court of appeals refused to consider the merits of Tutton’s ar-

gument, though, because it concluded he failed to present to the district

court both the legal arguments and evidence that prove he is entitled to



                                    8
relief. Ex Parte Tutton, No. 10-14-00360-CR, 2015 WL 4384496 (Tex.

App.—Waco 2015). Because the court was wrong as to both, Tutton

moved the court to rehear the case. The court denied Tutton’s motion on

July 29, 2015. This petition now follows.




                                    9
                               Argument

 I.!   Background

       In April 2004, Tutton—himself a juvenile—was placed on proba-

tion in Ellis County for committing the offense of indecency with a child.

Had he completed a treatment program, he would not have been re-

quired to register as a sex offender, but approximately two years later

the State filed a “Petition to Modify” in which it alleged that Tutton

failed to do so. (CR: 82).

       Almost immediately after the State filed that petition, however, a

Johnson County court sentenced Tutton to the Texas Youth Commis-

sion for committing a separate sexual assault. Ellis County thus filed a

motion to nonsuit its petition. (CR: 99). And the Johnson County court

“defer[red] deci[ding] on requiring registration… until [Tutton] com-

pleted treatment… as a condition of probation or while committed to

the Texas Youth Commission.”

       On September 5, 2008, Tutton failed the Johnson County-ordered

TYC treatment program. (CR: 63). TYC sent a letter to Ellis County

stating that Tutton “w[ould] be required to register as a sex offender” as




                                    10
a result of the Johnson County offense. (CR: 63); see also (St. Br. at 9-

10). But the Johnson County court never then required as much.

      In February 2010, the Ellis County grand jury nonetheless indict-

ed Tutton for failing to comply with the registration requirements of the

Sex Offender Registration Program. See TEX. CRIM. PROC. CODE § art.

62.102; (CR: 3). Specifically, for failing “to report a change in [his] sta-

tus with respect to leaving employment.” (CR: 3). Tutton was con-

fused—no court had ever required him to register. (CR: 39, 52). But be-

cause Tutton’s appointed attorney, Charles Slaton, “advised [him] that

[he] did not stand a chance in trial,” on June 11, 2010, Tutton agreed to

plead guilty in exchange for a sentence of 730 days’ confinement in the

state jail, a $1,000 fine, and five years’ community supervision. (CR: 28-

29, 52).

      Since that time, however, Tutton’s belief was confirmed—he was

in fact not required to register. Thus, on September 24, 2014, Tutton,

represented by present counsel, filed an application for a writ of habeas

corpus in which he alleged that: (1) he was actually innocent; (2) his

plea was involuntary; and (3) he received ineffective assistance of coun-

sel because Slaton inadequately investigated the matter. (CR: 54).



                                    11
     The State disagreed. Tutton was required to register, the State

contended, as a result of the Johnson County offense, and thus all of his

grounds were without merit. (CR: 56-58). But the State did not contend

that the Johnson County court required Tutton to register. Instead, the

State pointed to its own prosecutor’s affidavit, citing an administrative

rule, claiming that, because Tutton failed the Johnson County-ordered

treatment course, TYC itself had authority to require him to register.

(CR: 60-63).

     A mere four days later, the district court denied Tutton’s applica-

tion for the reasons provided by the State. (CR: 64). The day after that,

Tutton filed a “Supplemental Response and Unopposed Request for Re-

hearing,” to which he attached several pieces of additional evidence.

(CR: 65-107). The court explicitly “considered,” but denied, the response

and request. (CR: 111).

     On appeal to the Tenth Court of Appeals, Tutton argued the dis-

trict court erred in finding that he was required to register as a sex of-

fender as a result of his juvenile adjudication in Johnson County. (Ap.

Br. at 9). Primarily because, even if TYC had required him to register,

the administrative rule that theh State contended allowed it to do so



                                   12
was irreconcilably in conflict with the Code of Criminal Procedure, ren-

dering it void. (Ap. Br. at 11). Thus, because TYC had no authority to

require Tutton to register, he did not fail to comply with the concomi-

tant requirements. (Ap. Br. at 18). Because he nonetheless pleaded

guilty to as much on the advice of his counsel, Tutton (1) was actually

innocent, (2) his plea was involuntary, and (3) he received ineffective

assistance of counsel. (Ap. Br. at 18).

     In response, the State offered nothing to rebut the merits of Tut-

ton’s argument. It simply pasted its argument from the district court in-

to its brief. Compare (St. Br. at 8-11) with (CR: 56-58). Instead, the

State asked the court to ignore Tutton’s argument because Tutton

“failed to present to the trial court the evidence–or the legal argu-

ments—that he now claims shows he is entitled to relief.” (St. Br. at 6).

Tutton filed a reply brief addressing each claim, but the court of appeals

entirely ignored it and, following the State, refused to consider the mer-

its of Tutton’s argument. Tutton, 2015 WL 4384496 at *3. Because the

court was wrong—and in fact made an even greater error than the

State urged—Tutton moved the court to rehear the case. The court de-

nied that motion.



                                     13
II.!   A habeas corpus applicant cannot be required to anticipate
       the district court’s reasoning in rejecting his application in
       order to preserve his claim for review

       In Tutton’s original application for a writ of habeas corpus he al-

leged that, because he was not required to register as a sex offender: (1)

he was actually innocent, (2) his plea was involuntary, and (3) he re-

ceived ineffective assistance of counsel because his counsel inadequately

investigated the matter. (CR: 39). On appeal, he argued just the same,

pointing to his application. (Ap. Br. at 6-7, 10). And yet, in a single con-

clusory sentence, followed by three sentences of boilerplate, the court of

appeals rejected Tutton’s appeal because “[n]one of the arguments made

by Tutton on appeal were made in his habeas-corpus application.” Tut-

ton, 2015 WL 4384496 at *3.

       Concededly, the statutory-construction question focused upon in

Tutton’s brief was not discussed in his application for a writ of habeas

corpus. Compare (Ap. Br. at 10-18) with (CR: 43-54). But the statutory-

construction issue only arose once the State pointed to an Attorney

General’s opinion in support of its argument, as it relied upon a provi-

sion in the Administrative Code. See (CR: 57) (citing Tex. Att’y Gen. Op.

GA-0772 (2010) (citing 37 TEX. ADMIN. CODE § 87.85(g) (2009))). Consid-



                                    14
ering the district court then accepted that argument in denying Tutton’s

writ application, Tutton had to address it on appeal. By the court of ap-

peals’s reasoning, by contrast, any sua sponte finding by a district court

would be unchallengable. See State v. Saavedra, 13-04-400-CR, 2005

WL 1714296 (Tex. App.—Corpus Christi 2005, no pet.) (acknowledging

district court’s ability to make a “sua sponte finding”); Turcar, LLC v.

I.R.S., 451 F. App’x 509, 513 (6th Cir. 2011) (recognizing a district

court’s ability to sua sponte decide a motion, and further explaining that

“a decision in the moving party’s favor, even if on an alternative basis

than those argued before the court, is a less extreme sua sponte action,

because the moving party’s motion puts its opponent on at least some

notice that defensive action is required.”); United States v. White, 704 F.

Supp. 90, 93 (E.D.N.C. 1989) (noting, without comment, district court’s

sua sponte identification of “a more serious problem which was the basis

of his recommendation to grant the motion to suppress”).

     Even if the court hadn’t ruled on an unanticipated basis, though,

parties on appeal are, of course, permitted to expand upon their argu-

ments before the district court. See, e.g., Henson v. State, 794 S.W.2d

385, 401 (Tex. App.—Dallas 1990, pet. ref’d) (“Apparently the State



                                    15
merely seeks to expand the reasoning behind its earlier argument, ra-

ther than setting out a new argument.”). Requiring litigants to present

their full appellate arguments before the district court, anticipating all

possible counterarguments, would quite obviously interrupt trial court

proceedings to an absurd degree. And, to that end, in order to preserve

a complaint for appeal “all a party has to do... is to let the trial judge

know what he wants, why he thinks himself entitled to it, and to do so

clearly enough for the judge to understand him.” Lankston v. State, 827

S.W.2d 907, 909 (Tex. Crim. App. 1992) (citing TEX. R. APP. P. 33.1).

     This standard is “not to be implemented by splitting hairs in the

appellate courts.” Ibid. And unless this Court “splits hairs,” Tutton’s

application satisfied “the fairly minimal requirements of Rule 33.1.”

Resendez v. State, 306 S.W.3d 308, 318 (Tex. Crim. App. 2009) (Hol-

comb, J., dissenting). Again, in Tutton’s original application for a writ of

habeas corpus he alleged that, because he was not required to register

as a sex offender: (1) he was actually innocent, (2) his plea was involun-

tary, and (3) he received ineffective assistance of counsel because his

counsel inadequately investigated the matter. (CR: 39). And on appeal,

he argued just the same. (Ap. Br. at 6-7, 10). Accordingly, Tutton urges



                                    16
this Court that the court of appeals’s first justification for failing to con-

sider his appeal was invalid.

III.!   The court of appeals incorrectly concluded that the neces-
        sary evidentiary support was not before the district court

        The court of appeals further faulted Tutton for failing to provide

evidence to support his arguments. Tutton, 2015 WL 4384496 at *3. Un-

like the State, though—in its response, it argued as much on the basis

that the numerous documents filed with Tutton’s supplemental applica-

tion were not properly before the Court—the court based its holding on

much narrower grounds: without only “the documents that show the

Johnson County adjudication and TYC discharge in the record, the dis-

trict court was constrained by the record to hold that Tutton had failed

to allege facts, which, if true, would entitle him to relief.” Compare (St.

Br. at 8) with Tutton, 2015 WL 4384496 at *3. But the TYC discharge

document was included in the record. By the State. See (CR: 63). And

the State further acknowledged that Tutton was adjudicated in Johnson

County on July 10, 2006. See (CR: 61). Far from having its hands tied,

then, the district court had absolutely everything it needed to grant re-

lief. Thus, on this basis, too, the court was wrong to ignore the merits of

Tutton’s appeal.


                                     17
IV.!    Conclusion

        The State, its argument that Tutton was required to register as a

sex offender having been clearly refuted, scrambled to defend its uncon-

stitutional conviction on procedural grounds. But they were every bit as

meritless. Only because the court of appeals. like the district court be-

fore it, blindly assented to the State’s request, can Tutton’s conviction

stand. Accordingly, Tutton respectfully requests this Court to grant this

petition so that it may reverse the judgment of the court of appeals and

remand this case to that Court for consideration of the merits of his ap-

peal.

                                  Prayer

        For the foregoing reasons, Tutton respectfully requests this Court

grant this petition for discretionary review.

                                   Respectfully submitted,


                                        /s/ Bruce Anton
                                   BRUCE ANTON
                                   Bar Card No. 01274700
                                   ba@sualaw.com

                                        /s/ Brett Ordiway
                                   BRETT ORDIWAY
                                   State Bar No. 24079086
                                   bordiway@sualaw.com


                                     18
SORRELS, UDASHEN & ANTON
2311 Cedar Springs Road, Suite 250
Dallas, Texas 75201
(214)-468-8100 (office)
(214)-468-8104 (fax)

Counsel for Appellant




 19
                        Certificate of Service

      I, the undersigned, hereby certify that a true and correct copy of
the foregoing Appellant’s Petition for Discretionary Review was elec-
tronically served to the Ellis County District Attorney’s Office and State
Prosecuting Attorney on September 24, 2015.


                                       /s/ Bruce Anton
                                  Bruce Anton




                      Certificate of Compliance

      Pursuant to TEX. R. APP. P. 9.4(i)(3), undersigned counsel certifies
that this brief complies with:

  1.! the type-volume limitation of TEX. R. APP. P. 9.4(i)(2)(D) because
      this brief contains 1,765 words, excluding the parts of the brief ex-
      empted by TEX. R. APP. P. 9.4(i)(1).

  2.! the typeface requirements of TEX. R. APP. P. 9.4(e) and the type
      style requirements of TEX. R. APP. P. 9.4(e) because this brief has
      been prepared in a proportionally spaced typeface using Microsoft
      Word 2011 in 14-point Century.



                                      /s/ Bruce Anton
                                  BRUCE ANTON




                                   20
APPENDIX




   21
                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-14-00360-CR

                          EX PARTE MICAH TUTTON



                            From the 40th District Court
                                Ellis County, Texas
                              Trial Court No. 34649CR


                          MEMORANDUM OPINION


      In one issue, appellant, Micah Tutton, argues that the trial court abused its

discretion by denying his article 11.072 application for writ of habeas corpus based on a

finding that he was required to register as a sex offender as a result of his juvenile

adjudication in Johnson County, Texas. See TEX. CODE CRIM. PROC. ANN. art. 11.072 (West

Supp. 2014). We affirm.

                                    I.     BACKGROUND

      On February 18, 2010, Tutton was indicted in Ellis County, Texas, for failing to

comply with the sex-offender registration requirements. See generally id. art. 62.102 (West

Supp. 2014). Pursuant to a plea bargain with the State, Tutton pleaded guilty to the
charged offense and received a 730-day jail term and a $1,000 fine. However, the trial

court suspended the prison sentence and placed Tutton on community supervision for a

period of five years including installment payments of any fines and court costs as

provided in the conditions of supervision.              Orders modifying Tutton’s community

supervision were entered on September 13, 2010; May 11, 2011; and September 20, 2011.

        On September 24, 2014, Tutton filed an article 11.072 application for writ of habeas

corpus, asserting that: (1) he is innocent of the offense; (2) he received ineffective

assistance of counsel at the time he entered into the plea bargain with the State; and (3)

his plea was not knowingly and voluntarily made. Tutton argued that he had no duty to

register as a sex offender because he completed a sex-offender treatment program, and

because any duty to register stemming from Johnson County had been deferred.1 In

support of his application, Tutton included an affidavit, wherein he stated the following:

        I was charged with failure to register as a sex offender in Ellis County,
        Texas. The court appointed Charles Slaton to represent me. I met with Mr.
        Slaton twice, both times in court. He advised me that I did not stand a
        chance in trial and that it would be in my interest to accept a probated
        sentence. He never discussed any possible defenses. I told him that, in the
        back of my mind, I did not believe I was required to register, but I did not
        know exactly why and could not explain why. I knew I had completed the
        required treatment and that the juvenile matters had been deferred. Mr.
        Slaton, to my knowledge, did not follow up on the matter. Had I known


        1  Regarding Tutton’s completion of the Pegasus sex-offender treatment program, the State argued
in the trial court and on appeal that this requirement pertained to Tutton’s conviction from Ellis County
Court at Law Number Two, sitting as a juvenile court. The State further argued that Tutton’s registration
requirement stemmed from his Johnson County conviction, which resulted in Tutton being sentenced to
the Texas Youth Commission (“TYC”) for an indeterminate period of time and a deferral of the registration
requirement until Tutton completed a TYC treatment program.

Ex parte Tutton                                                                                   Page 2
        that I was not required to register, I would not have agreed to plead guilty,
        but would have contested the matter.

Tutton did not proffer any other evidence at that time, nor did Tutton’s application refer

to any other documents, exhibits, or attachments.

        The State responded that Tutton had failed to carry his burden to show that he

was not required to register as a sex offender and that Tutton was required to register at

the time of his plea.     The trial court denied Tutton’s habeas-corpus application as

frivolous without a hearing and made several findings of fact, including:

        The Court finds that Applicant failed to successfully complete the Texas
        Youth Commission’s Sexual Behavior Treatment Program and is required
        to register as a sex offender due to his adjudication from Johnson County.

        The Court finds that the Johnson County order in Cause Number J04333
        deferred the decision on requiring registration under Texas Code of
        Criminal Procedure article 62.352(b)(1) until Applicant completed
        treatment for his sexual offense as a condition of probation or while
        committed to the Texas Youth Commission and did not defer “until further
        order of the court.”

        The Court finds that Applicant has failed to allege or prove any facts which,
        if true, would entitle him to relief; that there are no unresolved facts to be
        resolved; and that no hearing is necessary.

        Shortly after the trial court’s denial of the application, Tutton filed a

“Supplemental Response and Unopposed Request for Rehearing” and filed additional

documents “that need to be filed with the 11.072 Application for Writ of Habeas

Corpus . . . .” Contrary to Tutton’s assertion, the State objected to Tutton’s request for a

rehearing and argued that the newly-filed documents did not change the State’s position


Ex parte Tutton                                                                          Page 3
that Tutton was legally required to register as a sex offender. The trial court ultimately

denied Tutton’s rehearing request, and this appeal followed.

                         II.    TUTTON’S HABEAS-CORPUS APPLICATION

        In his sole issue on appeal, Tutton contends that the trial court abused its discretion

in denying his habeas-corpus application. Specifically, Tutton argues that he was not

required to register as a sex offender because the Texas Youth Commission, not Tutton,

was required by rule to register Tutton as a sex offender, and because the Texas Youth

Commission rule purportedly requiring it to register Tutton irreconcilably conflicts with

the Code of Criminal Procedure.

A.      Standard of Review

        We review a habeas court’s decision on an application for a writ of habeas corpus

under an abuse-of-discretion standard. Ex Parte Wheeler, 203 S.W.3d 317, 324 (Tex. Crim.

App. 2006). The applicant bears the burden of establishing by a preponderance of the

evidence that the facts entitle him to relief. Ex parte Thomas, 906 S.W.2d 22, 24 (Tex. Crim.

App. 1995).       We review the record evidence in the light most favorable to the habeas

court’s ruling, and we must uphold that ruling absent an abuse of discretion. Kniatt v.

State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006); see Ex parte Rodriguez, 378 S.W.3d 486,

489 (Tex. App.—San Antonio 2012, pet. ref’d). We give almost total deference to the trial

court’s findings that are “’based upon credibility and demeanor.’” Ex parte Amezquita,




Ex parte Tutton                                                                          Page 4
223 S.W.3d 363, 367 (Tex. Crim. App. 2006) (quoting Ex parte White, 160 S.W.3d 46, 50

(Tex. Crim. App. 2004)).

        In habeas corpus proceedings, “[v]irtually every fact finding involves a
        credibility determination” and “the fact finder is the exclusive judge of the
        credibility of the witnesses.” Ex parte Mowbray, 943 S.W.2d 461, 465 (Tex.
        Crim. App. 1996). In an article 11.072 habeas case, such as the one before
        us, the trial court is the sole finder of fact. Ex parte Garcia, 353 S.W.3d 785,
        788 (Tex. Crim. App. 2011). “There is less leeway in an article 11.072 context
        to disregard the findings of the trial court” than there is in an article 11.07
        habeas case, in which the Court of Criminal Appeals is the ultimate fact
        finder.

Ex parte Ali, 368 S.W.3d 827, 830 (Tex. App.—Austin 2012, pet. ref’d). We must also defer

“not only to all implicit factual findings that the record will support in favor of a trial

court’s ruling, ‘but also to the drawing of reasonable inferences from the facts.’” Amador

v. State, 221 S.W.3d 666, 674-75 (Tex. Crim. App. 2007) (quoting Kelly v. State, 163 S.W.3d

722, 726 (Tex. Crim. App. 2005).

B.      Discussion

        None of the arguments made by Tutton on appeal were made in his habeas-corpus

application.2 To preserve error, Texas Rule of Appellate Procedure 33.1(a) requires the

complaining party to make a specific objection or complaint and obtain a ruling thereon



        2 Tutton’s appellate complaints also do not comport with the arguments made in his “Supplemental
Response and Unopposed Request for Rehearing.” However, this is not central to this appeal because
Tutton only challenges the trial court’s denial of his habeas-corpus application, and the arguments made
in his “Supplemental Response and Unopposed Request for Rehearing” were not before the trial court at
the time the trial court denied Tutton’s habeas-corpus application. See Willover v. State, 70 S.W.3d 841, 845
(Tex. Crim. App. 2002) (“Finally, an appellate court must review the trial court’s ruling in light of what was
before the trial court at the time the ruling was made.”) (citing Weatherred v. State, 15 S.W.3d 540, 542 (Tex.
Crim. App. 2000)).

Ex parte Tutton                                                                                         Page 5
before the trial court. See TEX. R. APP. P. 33.1(a); see also Wilson v. State, 71 S.W.3d 346, 349

(Tex. Crim. App. 2002). Texas courts have held that points of error on appeal must

correspond or comport with objections and arguments made at trial. Dixon v. State, 2

S.W.3d 263, 273 (Tex. Crim. App. 1999) (“[A]n objection stating one legal theory may not

be used to support a different legal theory on appeal.”); see Wright v. State, 154 S.W.3d

235, 241 (Tex. App.—Texarkana 2005, pet. ref’d). “Where a trial objection does not

comport with the issue raised on appeal, the appellant has preserved nothing for review.”

Wright, 154 S.W.3d at 241; see Ex parte Tucker, 977 S.W.2d 713, 715 (Tex. App.—Fort Worth

1998) (holding that the issue of excessive bond would not be addressed on appeal when

it was not included in a habeas application that was the basis of the appeal), pet. dism’d, 3

S.W.3d 576 (Tex. Crim. App. 1999) (per curiam); see also Landrum v. State, No. 10-13-00281-

CR, 2014 Tex. App. LEXIS 10194, at *17 (Tex. App.—Waco Sept. 11, 2014, pet. ref’d) (mem.

op., not designated for publication) (“A complaint will not be preserved if the legal basis

of the complaint raised on appeal varies from the complaint made at trial. Accordingly,

because appellant’s issue does not comport with the argument made at trial, this issue

presents nothing for review . . . .” (internal citations omitted)). Because Tutton’s appellate

complaints do not comport with the arguments made in the trial court, we cannot say

that Tutton has preserved his appellate complaints for our review. See TEX. R. APP. P.

33.1(a); see also Wilson, 71 S.W.3d at 349; Dixon, 2 S.W.3d at 273.




Ex parte Tutton                                                                            Page 6
        In any event, even if Tutton had preserved this issue for review, the record does

not indicate that Tutton satisfied his burden of proving facts which would entitle him to

habeas relief. In his application, Tutton provided only an affidavit in which he stated

that he did not believe when he entered his guilty plea that he had to register as a sex

offender. Besides his own speculation, Tutton does not refer to any exhibits or documents

in his application. On the record as presented to the trial court, even including the

exhibits that were allegedly left out of the original documents supporting the petition and

presented to the habeas court with the request for rehearing, the trial court’s finding that

“the Applicant has failed to allege or prove any facts which, if true, would entitle him to

relief” is the only finding upon which the judgment is necessarily based, and the only one

required to support the judgment. Because the failure to register was allegedly based on

the Johnson County judgment and his discharge from TYC, those documents were critical

to a proper determination of the petition for writ of habeas corpus on the basis now

argued by Tutton on appeal. Those documents do not appear in the habeas record.

Further, it does not appear that Tutton focused on the Johnson County judgment and

TYC discharge until appeal and, thus, Tutton presents an argument on appeal that was

not presented to the habeas court; this explains why those documents are not part of the

habeas record. The problem for Tutton is that without the documents that show the

Johnson County adjudication and TYC discharge in the record, the habeas court was




Ex parte Tutton                                                                       Page 7
constrained by the record to hold that Tutton had failed to allege facts, which, if true,

would entitle him to relief.

        Therefore, viewing the evidence in the light most favorable to the trial court’s

ruling, we cannot say that the trial court abused its discretion in denying Tutton’s

application. See Ex Parte Wheeler, 203 S.W.3d at 324; Kniatt, 206 S.W.3d at 664; see also Ex

parte Rodriguez, 378 S.W.3d at 489. We overrule Tutton’s sole issue on appeal.

                                     III.   CONCLUSION

        Having overruled Tutton’s sole issue on appeal, we affirm the judgment of the

trial court.




                                                 AL SCOGGINS
                                                 Justice



Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed July 9, 2015
Do not publish
[CR25]




Ex parte Tutton                                                                       Page 8
