                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-16-00100-CR


CHARLES RAY PENIGAR                                                   APPELLANT

                                         V.

THE STATE OF TEXAS                                                          STATE


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      FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY
                    TRIAL COURT NO. 1424061D

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                         MEMORANDUM OPINION1

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                                 I. INTRODUCTION

      Appellant Charles Ray Penigar appeals his conviction for failing to comply

with sexual-offender registration requirements. In three points, Penigar argues

that the judgment incorrectly states that he was convicted of a first-degree felony;

that the jury charge erroneously contains a prior conviction as an element of the


      1
       See Tex. R. App. P. 47.4.
instant offense; and that Texas Local Government Code section 133.102(a)(1),

under which Penigar was assessed a $133 “consolidated court cost,” is facially

unconstitutional. Because the judgment incorrectly lists the felony offense level

as a first-degree felony, we will modify the judgment to reflect that Penigar was

convicted of a third-degree felony and affirm the judgment as modified.

                                 II. BACKGROUND

      In 1988, Penigar was convicted of sexual assault of a child and was placed

on probation for six years. Two years later, Penigar’s probation was revoked for

failing to report to his probation officer, and he was sentenced to six years’

imprisonment.

      Due to his conviction for sexual assault of a child, Penigar was required to

register as a sex offender for life and to annually verify his registration during a

sixty-day window running from thirty days before to thirty days after his birthday.

See Tex. Code Crim. Proc. Ann. art. 62.101(a)(1) (West Supp. 2016) (setting

forth lifetime registration requirement); see also id. art. 62.001(5), (6) (West

Supp. 2016) (providing definitions of terms used in article 62.101).      Because

Penigar’s birthday is December 9, he was required to verify his registration

between November 9 and January 8 each year.            Penigar began his annual

registration as a sex offender in 1998. In 2007, Penigar was convicted for failing

to comply with his sexual offender registration requirements and was sentenced

to two years’ confinement.




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      In the current case, a jury convicted Penigar of failing to comply with his

sexual offender registration requirements after he failed to verify his registration

in 2014. The jury also found that Penigar was a habitual offender, having been

previously convicted of possession in December 1991 and in July 2000. The trial

court sentenced Penigar to thirty years’ imprisonment. Penigar then perfected

this appeal.

                           III. ERROR IN THE JUDGMENT

      In his first point, Penigar argues that the judgment incorrectly states that he

was convicted of a first-degree felony.      The State agrees that the judgment

incorrectly classifies the felony offense level and that the judgment should be

modified.

      Here, Penigar was charged with failing to report to the local law

enforcement authority or to verify his sexual-offender registration on or about

January 9, 2015. The failure to annually verify sexual offender registration is a

third-degree felony, which is punishable by imprisonment for not more than ten

years or less than two years. Id. art. 62.102(b)(2) (West Supp. 2016); Tex. Penal

Code Ann. § 12.34(a) (West 2011). Penigar’s prior failure-to-register conviction

from 2007 does not increase the severity level or grade of the current offense;

instead, it increases only the punishment level of the current offense. See Tex.

Code Crim. Proc. Ann. art. 62.102(c); Tex. Penal Code Ann. § 12.33(a) (West

2011) (stating that punishment range for a second-degree felony is imprisonment

for not more than twenty years or less than two years); Ford v. State, 334 S.W.3d


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230, 234–35 (Tex. Crim. App. 2011).           Moreover, the jury’s habitual-offender

finding—that Penigar is a habitual offender due to his two prior possession

convictions from 1991 and 2000—increased the punishment range to twenty-five

to ninety-nine years’ or life imprisonment, but the habitual-offender finding did not

increase the felony offense level. See Tex. Penal Code Ann. § 12.42(d) (West

Supp. 2016).

          Accordingly, we hold that the judgment incorrectly classifies the felony

offense level as a first-degree felony, we modify the judgment to reflect that

Penigar was convicted of a third-degree felony,2 and we sustain Penigar’s first

point. See Tex. R. App. P. 43.2(b); Garza v. State, 298 S.W.3d 837, 845 (Tex.

App.—Amarillo 2009, no pet.) (modifying judgment to correct felony offense

level).

      IV. THE JURY CHARGE ERROR DOES NOT CONSTITUTE EGREGIOUS HARM

          In his second point, Penigar argues that the jury charge improperly

included his prior conviction for failing to register as a sex offender as an element

of the current offense. Penigar further argues that he suffered egregious harm

due to the defective charge.




          2
        Penigar does not challenge the legality of his thirty-year sentence, which
falls within the punishment range after his punishment was enhanced due to the
habitual-offender finding. See id.


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                             A. Standard of Review

      “[A]ll alleged jury-charge error must be considered on appellate review

regardless of preservation in the trial court.” Kirsch v. State, 357 S.W.3d 645,

649 (Tex. Crim. App. 2012). In our review of a jury charge, we first determine

whether error occurred; if error did not occur, our analysis ends. Id. If error

occurred, whether it was preserved determines the degree of harm required for

reversal. Id. Unpreserved charge error warrants reversal only when the error

resulted in egregious harm. Nava v. State, 415 S.W.3d 289, 298 (Tex. Crim.

App. 2013); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op.

on reh’g); see Tex. Code Crim. Proc. Ann. art. 36.19 (West 2006).               The

appropriate inquiry for egregious harm is fact specific and must be performed on

a case-by-case basis. Gelinas v. State, 398 S.W.3d 703, 710 (Tex. Crim. App.

2013); Taylor v. State, 332 S.W.3d 483, 489 (Tex. Crim. App. 2011).

      In making an egregious harm determination, “the actual degree of harm

must be assayed in light of the entire jury charge, the state of the evidence,

including the contested issues and weight of probative evidence, the argument of

counsel[,] and any other relevant information revealed by the record of the trial as

a whole.” Almanza, 686 S.W.2d at 171. See generally Gelinas, 398 S.W.3d at

708–10 (applying Almanza). Errors that result in egregious harm are those “that

affect the very basis of the case, deprive the defendant of a valuable right, vitally

affect the defensive theory, or make a case for conviction clearly and significantly

more persuasive.” Taylor, 332 S.W.3d at 490 (citing Almanza, 686 S.W.2d at


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172). The purpose of this review is to illuminate the actual, not just theoretical,

harm to the accused. Almanza, 686 S.W.2d at 174.

      B. The Law on Using Prior Convictions to Enhance Punishment

      A prior conviction for failing to register as a sex offender increases the

punishment level of the current offense to the next highest degree of felony. Tex.

Code Crim. Proc. Ann. art. 62.102(c).             A prior conviction alleged for

enhancement “is not really a component element of the primary offense” but is

instead a historical fact to show the persistence of the accused and the futility of

ordinary measures of punishment as related to him. Calton v. State, 176 S.W.3d

231, 233 (Tex. Crim. App. 2005). An enhancement increases the punishment

range to a certain range above that ordinarily prescribed for the indicted crime.

Id. It does not change the offense, or the degree of the offense, of conviction.

Id. There can be no enhancement until a person is first convicted of an offense

of a certain degree. Id. at 233–34.

                              C. Error in the Charge

      Here, Penigar complains of the following application paragraph that the

trial court included in the jury charge at guilt-innocence:

             Now, if you find from the evidence beyond a reasonable doubt
      that on or about the 9th day of January, 2015, in Tarrant County,
      Texas, Charles Ray Penigar, did then and there intentionally or
      knowingly fail to report to the local law enforcement authority, to-wit:
      the police department of the City of Fort Worth, Texas, to register or
      verify registration under the sex offender registration program of
      Chapter 62 Texas Code of Criminal Procedure not earlier than the
      30th day before and not later than the 30th day after the anniversary
      of the defendant’s date of birth to verify the information in the


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      registration form maintained by said law enforcement authority, and
      the defendant had a reportable conviction or adjudication namely,
      sexual assault, in Cause Number 0328153, on the 22nd day of
      February, 1990, in the 297th District Court of Tarrant County, Texas,
      and said defendant’s duty to register expires under Article 62.101(a),
      of the Texas Code of Criminal Procedure[], and you further find that
      prior to the commission of the offense or offenses set out above the
      said defendant had been convicted of an offense under Article 62,
      Texas Code of Criminal Procedure, to-wit: failure to register as a
      sex offender, in Cause Number 1067661D, on the 26th day of
      November, 2007, in the Criminal District Court Number One, of
      Tarrant County, Texas, then you will find the defendant guilty of
      failure to register as a sex offender with prior conviction for failure to
      register as a sex offender as charged in the indictment. [Emphasis
      added.]

Here, the State concedes that the inclusion of Penigar’s prior failure-to-register

conviction in the guilt-innocence charge as a component element of the offense

was error because “[t]here can be no enhancement until a person is first

convicted of an offense of a certain degree.” See id.

   D. The Almanza Factors Weigh Against a Finding of Egregious Harm

      Because Penigar stated that he had no objections to the charge, we will

reverse only if the error resulted in egregious harm. See Nava, 415 S.W.3d at

298; Almanza, 686 S.W.2d at 171. Here, the jury charge held the State to a

higher burden than that required by article 62.102 because in order for the jury to

find Penigar guilty, the State was required to prove beyond a reasonable doubt

that Penigar had failed to comply with sex offender registration requirements in

2015 and in 2007. The state of the evidence from the trial revealed that Penigar

was convicted of sexual assault of a child in 1988; that sexual assault of a child is

a reportable conviction requiring lifetime registration; that Penigar was required to


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report between November 9, 2014, and January 8, 2015; that Penigar knew of

his duty to register annually; that Penigar had made an appointment to complete

his annual registration verification; and that Penigar did not show up for his

appointment or make any contact with the Fort Worth Police Department prior to

his arrest on an outstanding warrant in August 2015. The evidence therefore

conclusively established Penigar’s current failure-to-register violation.           See

Tatum v. State, 431 S.W.3d 839, 843 (Tex. App.—Houston [14th Dist.] 2014, pet.

ref’d) (holding evidence sufficient to support conviction for failure to register).

During closing argument, Penigar’s counsel reiterated Penigar’s testimony during

which he had “fully admitted” that he had previously failed to register in 2007.

The State made clear during its final closing argument that the current trial was

“not about punishing [Penigar] for . . . failing to register before [in 2007]” and that

it had only put on evidence of the 2007 conviction for failing to comply with sex

offender registration requirements because the State believed that the prior

conviction was an element of the current offense. With regard to other relevant

information, the record demonstrates that both the State and the defense

referenced the 2007 failure-to-register conviction during voir dire, treating it as if it

were an element of the current offense from the outset of the trial.             Having

examined the four Almanza factors, we conclude that the erroneous inclusion of

Penigar’s prior failure-to-register conviction, which increased the State’s burden,

did not egregiously harm Penigar. See 686 S.W.2d at 171; Jackson v. State, 285

S.W.3d 181, 184 (Tex. App.—Texarkana 2009, no pet.) (“[G]iven the fact that the


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jury had already been made aware of all this information from the very outset of

the trial, it is difficult to imagine how a later delivery of the same information by

including it in the charge on guilt/innocence could be harmful.”). Accordingly, we

overrule Penigar’s second point.

  V. TEXAS LOCAL GOVERNMENT CODE SECTION 133.102(A)(1) IS NOT FACIALLY
                          UNCONSTITUTIONAL

      In his third point, Penigar argues that section 133.102(a)(1) of the Texas

Local Government Code, under which a $133 “consolidated court cost” was

assessed against him, is facially unconstitutional. Specifically, Penigar argues

that the assessment of the $133 “consolidated court cost” against him violates

the Separation of Powers Clause of the Texas constitution.

      The State argues that Penigar waived his right to challenge the imposed

consolidated court cost—a nonsystemic, nonpenal challenge—because he raises

it for the first time on appeal. But we conclude, as we have in the past, that

Penigar may raise his complaint on appeal, even though he did not raise it to the

trial court, because the $133 “consolidated court cost” was not imposed in open

court or itemized in the judgment. See, e.g., Ingram v. State, No. 02-16-00157-

CR, 2016 WL 6900908, at *2 (Tex. App.—Fort Worth Nov. 23, 2016, pet. filed);

Rogers v. State, No. 02-16-00047-CR, 2016 WL 4491228, at *1 (Tex. App.—Fort

Worth Aug. 26, 2016, pet. filed) (mem. op., not designated for publication) (both

cases relying on London v. State, 490 S.W.3d 503, 506–07 (Tex. Crim. App.




                                         9
2016)). But even though Penigar did not waive his argument, it is unavailing in

light of this court’s recent holding in Ingram. See 2016 WL 6900908, at *3.

      The $133 “consolidated court cost” at issue was authorized by the local

government code.     Tex. Loc. Gov’t Code Ann. § 133.102(a)(1) (West Supp.

2016).    With his facial challenge, Penigar has the burden to establish this

statute’s unconstitutionality. See Peraza v. State, 467 S.W.3d 508, 514 (Tex.

Crim. App. 2015), cert. denied, 136 S. Ct. 1188 (2016). To successfully do so,

Penigar must establish that no set of circumstances exists under which this

statute would be valid. See id. We look for an interpretation that supports and

upholds a statute’s constitutionality unless the contrary interpretation is clearly

shown.    See id. Regarding statutes authorizing the imposition of court costs

against criminal defendants, the court of criminal appeals has specified that for

such statutes to pass constitutional muster, they must “provide[] for an allocation

of . . . court costs to be expended for legitimate criminal justice purposes,” which

are ones that “relate[] to the administration of our criminal justice system.” Id. at

517–18.

      Regarding section 133.102(a)(1)’s $133 “consolidated court cost,” Penigar

asserts that three of the fourteen prescribed percentage allocations for the $133

are not legitimate criminal-justice purposes. Specifically, he points to (1) the

allocation of 5.0034% to “law enforcement officers standards and education,”

which is now collected into an account in the general revenue fund; (2) the

allocation of 9.8218% to “comprehensive rehabilitation,” which is spent at the


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direction of an agency in the executive branch; and (3) the allocation of 0.0088%

to a fund for “abused children’s counseling” with no statutory direction to which

State account the percentage should be directed. See Tex. Loc. Gov’t Code

Ann. § 133.102(e)(1), (5), (6). We follow our decision in Ingram in which we

concluded, as have other courts of appeals, that these three enumerated

designated uses as written are related to the administration of the criminal justice

system and that the legislature’s directive to the comptroller to disburse those

monies from the general revenue fund for those uses passes constitutional

muster. See 2016 WL 6900908, at *3 (citing Salinas v. State, 485 S.W.3d 222,

226 (Tex. App.—Houston [14th Dist.] 2016, pet. granted); Penright v. State, 477

S.W.3d 494, 497–500 (Tex. App.—Houston [1st Dist.] 2015, pet. granted);

Denton v. State, 478 S.W.3d 848, 851–52 (Tex. App.—Amarillo 2015, pet. ref’d)

(concluding section 133.102 did not violate Takings Clause of Texas

constitution)). Accordingly, Penigar has failed to carry his burden to establish

that section 133.102 cannot operate constitutionally under any circumstance, i.e.,

that the statute is invalid in all possible applications. See id. (citing McAfee v.

State, 467 S.W.3d 622, 645–47 (Tex. App.—Houston [1st Dist.] 2015, pet. ref’d);

O’Bannon v. State, 435 S.W.3d 378, 381–82 (Tex. App.—Houston [14th Dist.]

2014, no pet.)).

      We overrule Penigar’s third point.




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                               VI. CONCLUSION

      Having sustained Penigar’s first point, we modify the judgment to reflect

that Penigar was convicted of a third-degree felony. Having overruled Penigar’s

remaining points, we affirm the judgment as modified.    See Tex. R. App. P.

43.2(b).

                                                /s/ Sue Walker
                                                SUE WALKER
                                                JUSTICE

PANEL: WALKER and MEIER, JJ.; KERRY FITZGERALD (Senior Justice,
Retired, Sitting by Assignment).

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: December 22, 2016




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