Opinion issued June 13, 2013




                                 In The

                           Court of Appeals
                                 For The

                       First District of Texas
                        ————————————
                           NO. 01-12-00459-CR
                         ———————————
                  WILLIAM EARL DURHAM, Appellant
                                   V.
                    THE STATE OF TEXAS, Appellee




                  On Appeal from the 75th District Court
                         Liberty County, Texas
                     Trial Court Case No. CR28475
                          MEMORANDUM OPINION

      A jury found appellant William Earl Durham guilty of the offense of failing

to comply with sex-offender registration requirements. 1 Appellant entered a plea

of true to an enhancement allegation of a prior felony conviction, elevating the

punishment range from a third-degree felony to a second-degree felony. 2 The jury

assessed appellant’s punishment at 12 years in prison.

      Appellant raises two issues on appeal.3       He challenges the trial court’s

decision not to admit certain evidence and raises an ineffective assistance of

counsel claim.

      We affirm.

                                    Background

      On April 20, 1994, appellant was convicted in 230th District Court of Harris

County of the offense of burglary of a habitation with the intent to commit sexual

assault. Based on the conviction, appellant was instructed to register as a sex

offender with the local law enforcement authority. After he was released from


1
      See TEX. CODE CRIM. PROC. ANN. art. 62.001 (Vernon Supp. 2012); TEX. CODE
      CRIM. PROC. ANN. art. 62.051 (Vernon Supp. 2012).
2
      See TEX. CODE CRIM. PROC. ANN. art. 62.102 (Vernon 2006); TEX. PENAL CODE
      ANN. § 12.42(a) (Vernon Supp. 2012).
3
      This appeal, originally filed in the Ninth Court of Appeals, Beaumont, Texas, was
      transferred to the First Court of Appeals, Houston, Texas. See TEX. GOV’T CODE
      ANN. § 73.001 (Vernon 2013).

                                          2
prison, appellant lived in Liberty, Texas, at a home owned by his mother. While

residing there, appellant registered as a sex offender with the Liberty Police

Department.

      In December 2010, appellant was indicted by a grand jury in Liberty County

for failure to comply with the sex-offender registration requirements. At trial, the

State offered proof that appellant no longer resided at his mother’s house and that

he had failed to provide his new address to local law enforcement authorities.

Appellant asserted that he had complied with the registration requirements.

      Appellant also contended that he was not required to register as a sex

offender, although he had been registering for a number of years, because he had

not been convicted of an offense for which he was required to register. To support

this contention, appellant sought to admit into evidence documents from a 2005

post-conviction application for writ of habeas corpus proceeding filed in the 230th

District Court of Harris County.     The habeas proceeding related to a dispute

regarding appellant’s parole for the burglary conviction. Among the documents

appellant sought to admit were the findings of fact and conclusions of law signed

by the habeas court. The State objected that the documents were not relevant and

would confuse the jury. The trial court sustained the State’s objection and denied

appellant’s request to admit the documents, including the findings of fact and

conclusions of law.

                                         3
      The jury found appellant guilty of the offense of failure to comply with the

sex-offender registration requirements.       Appellant pleaded true to a felony-

enhancement allegation in the indictment, elevating the punishment range from a

third-degree felony to a second-degree felony.        The jury assessed appellant’s

punishment at 12 years in prison.

      Appellant now appeals, raising two issues.        Appellant contends that he

received ineffective assistance of counsel at trial and that the trial court erred by

denying his request to admit into evidence the findings of fact and conclusions of

law from the 2005 habeas proceeding.

                                 Evidentiary Ruling

      In his second issue, appellant complains that he is entitled to the defense of

mistake of law and that the trial court erred when it refused to admit the findings of

fact and conclusions of law from the 2005 habeas proceeding, which he contends

indicate that he had not been convicted of an offense for which he was required to

register as a sex offender. Appellant argues that, by refusing to admit the findings

of fact and conclusions of law, the trial court deprived him of his ability to present

his defense of mistake of law.

A.    Standard of Review

      We review a trial court’s decision to admit or to exclude evidence for abuse

of discretion. See Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010).

                                          4
A trial court abuses its discretion only if its decision is “so clearly wrong as to lie

outside the zone within which reasonable people might disagree.” Taylor v. State,

268 S.W.3d 571, 579 (Tex. Crim. App. 2008).

B.    Statutory Provisions

      To understand appellant’s evidentiary argument, it is necessary first to

understand the relevant statutes involved.

      A person commits the offense of failure to comply with the sex-offender

registration requirements if he “is required to register and fails to comply” with any

of the registration requirements set out in chapter 62 of the Texas Code of Criminal

Procedure. TEX. CODE CRIM. PROC. art. 62.102(a) (Vernon 2006); see Young v.

State, 341 S.W.3d 417, 425 (Tex. Crim. App. 2011). A person who is “required to

register” is one who, among other circumstances, has a “reportable conviction or

adjudication.”   TEX. CODE CRIM. PROC. art. 62.051(a) (Vernon Supp. 2012)

(providing that person who has reportable conviction “shall register . . . with the

local law enforcement authority”).

      A conviction or adjudication for the offense of burglary may be a

“reportable conviction or adjudication” for purposes of sex-offender registration.

See TEX. CODE CRIM. PROC. 62.001(5)(D) (Vernon Supp. 2012). Code of Criminal

Procedure article 62.001(5)(D) defines the phrase “reportable conviction or

adjudication” to include

                                          5
      (D) a violation of Section 30.02 (Burglary), Penal Code, if the offense
      or conduct is punishable under Subsection (d) of that section and the
      actor committed the offense or engaged in the conduct with intent to
      commit a felony listed in Paragraph (A) or (C).

Id. Based on this provision, to determine whether a person must register as a sex

offender when convicted of burglary, it is necessary to ascertain the following two

components:

   • (1) Whether the offense or conduct is punishable under Penal Code
     subsection 30.02(d); and

   • (2) Whether the person committed the burglary offense or engaged in the
     conduct with the intent to commit a felony listed in Code of Criminal
     Procedure article 62.001(5)(A) or 62.001(5)(C).

See id. Here, appellant was convicted of burglary of a habitation with the intent to

commit sexual assault. Sexual assault is a felony listed in 62.001(5)(A). See id.

art. 62.001(5)(A).

      When appellant committed the burglary offense in 1992, Penal Code

subsection 30.02(d) provided,

      (d) [The offense of burglary] is a felony of the first degree if:

              (1) the premises are a habitation; or

              (2) any party to the offense is armed with explosives or a
              deadly weapon; or

              (3) any party to the offense injures or attempts to injure
              anyone in effecting the entry or while in the building or
              in immediate flight from the building.


                                           6
Act of May 24, 1973, 63d Leg., R.S., ch. 399, § 1, sec. 30.02, 1973 Tex. Gen.

Laws 883, 926–27 (amended 1993, 1995, 1999) (current version at TEX. PENAL

CODE ANN. § 30.02 (Vernon 2011)) (cited hereinafter as “Former § 30.02(d)”).

      The judgment of conviction admitted into evidence in this case shows that

appellant was convicted of the first-degree felony offense burglary of a habitation

with the intent to commit sexual assault. 4      It is not disputed that appellant’s

burglary conviction was determined to be a felony of the first degree under former

Penal Code subsection 30.02(d). Thus, appellant’s conviction for the first-degree

felony offense burglary of a habitation with the intent to commit sexual assault is a

reportable conviction pursuant to Code of Criminal Procedure article 62.001(5)(D)

for which he was required to register as a sex offender. See TEX. CODE CRIM.

PROC. art. 62.001(5)(D).

C.    Discussion

      In the trial court, appellant argued that the findings of fact and conclusions

of law from the 2005 habeas proceeding should be admitted because they provided

a basis for him to believe that he was not required to comply with the sex-offender


4
      Two judgments nunc pro tunc were signed regarding appellant’s burglary
      conviction, but appellant does not argue that the signing of the nunc pro tunc
      judgments support his appellate challenges. The record is clear that appellant was
      convicted of the first-degree felony offense of burglary of a habitation with the
      intent to commit sexual assault. The most recent judgment nunc pro tunc from
      2006, expressly indicates that appellant was convicted of burglary of a habitation
      with the intent to commit sexual assault.
                                          7
registration requirements.     Appellant asserted that the findings of fact and

conclusions of law indicated that he had not been convicted of burglary of a

habitation with the intent to commit sexual assault; rather, he had been convicted

of the offense of simple first-degree burglary of a habitation.

      The State objected on the ground that the findings of fact and conclusions of

law from the 2005 habeas proceeding were not relevant to whether appellant was

required to comply with the sex-offender registration requirements. The trial court

sustained the State’s objection and denied appellant’s request to admit the

document. We determine whether the trial court abused its discretion in sustaining

the State’s relevancy objection and denying appellant’s request to admit the

findings of fact and conclusions of law.

      In the 2005 habeas proceeding, appellant did not challenge his conviction for

burglary of a habitation with intent to commit sexual assault.        Instead, the

proceeding involved a dispute relating to his eligibility for release on mandatory

supervision for the burglary offense. Determination of whether appellant had been

eligible for mandatory supervision required the habeas court to determine which

subpart part of former Penal Code section 30.02(d) applied to appellant’s burglary

conviction.




                                           8
      In its findings of fact and conclusions of law, the habeas court determined

that appellant had been convicted pursuant to former subsection 30.02(d)(1). 5 That

subsection provided that a burglary offense was a first-degree felony if the

premises involved was a habitation. See Former § 30.02(d)(1). The habeas court

also determined that appellant had not been convicted pursuant to former Penal

Code subsections 30.02(d)(2) or 30.02(d)(3). Those subsections provided that the

offense of burglary is a felony of the first degree if “any party to the offense is

armed with explosives or a deadly weapon” or “any party to the offense injures or

attempts to injure anyone in effecting entry or while in the building or in

immediate flight from the building.” See Former § 30.02(d)(2), (3).

      Although not entirely clear, appellant appears to have argued in the trial

court that, by its findings of fact and conclusions of law, the habeas court

implicitly determined that he had not injured or attempted to injure anyone during

the burglary. He asserted that, based on this determination, he could not have had

the intent to commit sexual assault when he committed the burglary. Appellant

asserted that, absent the intent to commit sexual assault, he had not been convicted

of an offense for which he was required to register as a sex offender. See TEX.

CODE CRIM. PROC. art. 62.001(5)(A), (D).



5
      The findings of fact and conclusions of law were not admitted into evidence but
      are contained in the record.
                                         9
       On appeal, appellant contends that, by refusing to admit the findings of fact

and conclusions of law, the trial court deprived him of his ability to assert the

affirmative defense of mistake of law. Penal Code section 8.03, entitled, “Mistake

of Law,” provides in relevant part:

       (b) It is an affirmative defense to prosecution that the actor reasonably
       believed the conduct charged did not constitute a crime and that he
       acted in reasonable reliance upon:

             ....
             (2) a written interpretation of the law contained in an
             opinion of a court of record or made by a public official
             charged by law with responsibility for interpreting the
             law in question.

TEX. PENAL CODE ANN. § 8.03(b)(2) (Vernon 2011).

       Citing Penal Code section 8.03, appellant asserts that, had the findings of

fact and conclusions of law been admitted into evidence, he would have argued

that he did not comply with the sex-offender registration requirements because he

reasonably relied on the habeas court’s findings and conclusions, which he

believed showed that he had not been convicted of an offense for which he had to

register.   Appellant intimates that he relied on the habeas court’s implicit

determination that he had not injured or attempted to injure anyone during the

course of the burglary, and, thus, he could not have had the intent to commit sexual

assault when he committed the burglary.




                                          10
      Appellant’s position, however, is contrary to the law. Proving the offense of

burglary of a habitation with the intent to commit sexual assault does not require a

showing that appellant injured or attempted to injure anyone during the burglary.

See Ford v. State, 632 S.W.2d 151, 153 (Tex. Crim. App. 1982). Nor does it

require a showing that appellant committed or attempted to commit sexual assault.

See id. Appellant was not convicted of burglary by entering a habitation and

actually committing or attempting to commit a sexual assault, a separate offense

from burglary of a habitation with the intent to commit sexual assault. Compare

TEX. PENAL CODE ANN. § 30.02(a)(1) with § 30.02(a)(3). A conviction for the

offense of burglary of a habitation with the intent to commit sexual assault only

requires a showing that appellant intended to commit sexual assault when he

entered the habitation, not that he actually attempted to commit or committed

sexual assault. See Ford, 632 S.W.2d at 153.

      As stated, the trial court sustained the State’s objection that the findings of

fact and conclusions of law were not relevant. Relevant evidence is evidence that

has “any tendency to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it would be

without the evidence.” TEX. R. EVID. 401. Evidence that is not relevant is not

admissible. TEX. R. EVID. 402.




                                        11
       Given the law, the habeas court’s determination that appellant was not

convicted under former Penal Code subsections 30.02(d)(2) or 30.02(d)(3)—that

is, was not found to have been armed with explosives or a deadly weapon, or to

have injured or attempted to injure anyone during the burglary—did not tend to

support a reasonable belief by appellant that he was not convicted of an offense for

which he had to register as a sex offender. Based on the offense for which he was

convicted, appellant offers no argument to show why it was reasonable for him to

believe that the findings of fact and conclusions of law established that he was not

required to comply with the sex-offender registration requirements.

       We conclude it was within the trial court’s discretion to determine that the

findings of fact and conclusions of law were not relevant evidence. See TEX. R.

EVID. 401. We hold that the trial court did not abuse its discretion when it

sustained the State’s relevancy objection and excluded the findings of fact and

conclusions of law. See TEX. R. EVID. 402.

       We overrule appellant’s second issue.

                             Ineffective Assistance of Counsel

       In his first issue, appellant contends that he received ineffective assistance of

counsel at trial.




                                          12
A.    Applicable Legal Principles

      To prevail on a claim of ineffective assistance of counsel, an appellant must

show the following: (1) counsel’s performance fell below an objective standard of

reasonableness and (2) a reasonable probability exists that, but for counsel’s errors,

the result would have been different. See Strickland v. Washington, 466 U.S. 668,

687–88, 694, 104 S. Ct. 2052, 2064, 2068 (1984); Andrews v. State, 159 S.W.3d

98, 101 (Tex. Crim. App. 2005). The first Strickland component requires appellant

to overcome the strong presumption that counsel’s performance falls within a wide

range of reasonable professional assistance. See Andrews, 159 S.W.3d at 101. The

second Strickland component requires appellant to show that there is a reasonable

probability that, but for counsel’s errors, the result of the proceeding would have

been different.   See id. at 102.        A “reasonable probability” is a probability

sufficient to undermine confidence in the outcome. See id.

      Appellant has the burden to establish both components by a preponderance

of the evidence. See Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App.

1998).   A failure to show either (1) deficient performance or (2) sufficient

prejudice defeats the ineffectiveness claim. See Williams v. State, 301 S.W.3d 675,

687 (Tex. Crim. App. 2009); Carballo v. State, 303 S.W.3d 742, 750 (Tex. App.—

Houston [1st Dist.] 2009, pet. ref’d).




                                            13
B.    Analysis

      In his brief, appellant contends, “It is clear from the record that [appellant’s]

main strategy [at trial] was that he was not subject to registration as his case was

not a reportable offense.” Appellant again relies on his assertion that the habeas

court’s findings of fact and conclusions of law provided a basis to argue that he

had not been convicted of the offense of burglary of a habitation with the intent to

commit sexual assault but had instead been convicted of only simple burglary.

Appellant asserts that defense counsel should have moved to quash the indictment

on this basis. He also contends that defense counsel should have re-urged the

admission of the findings of fact and conclusions of law during appellant’s trial

testimony, pointing to instances when he contends the State, on cross-examination,

“opened the door” to the admission of the document. As discussed, the findings of

fact and conclusions of law do not serve as a basis to support an argument that

appellant was not convicted of the offense of burglary of a habitation with the

intent to commit sexual assault. See Ford, 632 S.W.2d at 153.

      A motion to quash the indictment based on the assertion that appellant was

not convicted of an offense for which he was required to comply with the sex-

offender registration requirements because the habeas court determined that he had

not been convicted under Penal Code subsections 30.02(d)(2) or 30.02(d)(3) would

have been properly denied by the trial court. Similarly, appellant has not shown

                                         14
that any further request to admit the findings of fact and conclusions of law into

evidence to show mistake of law or to show appellant was not required to comply

with the registration requirements would have been successful.

      Counsel is not ineffective for failing to undertake futile actions. See Mooney

v. State, 817 S.W.2d 693, 698 (Tex. Crim. App. 1991); see also Ex parte Chandler,

182 S.W.3d 350, 356 (Tex. Crim. App. 2005) (“[A] reasonably competent counsel

need not perform a useless or futile act[.]”)). We hold that appellant has not met

his burden to satisfy the first Strickland component to demonstrate by a

preponderance of the evidence that his trial counsel’s performance fell below an

objective standard of reasonableness. See Strickland, 466 U.S. at 687–88, 104 S.

Ct. at 2064; Andrews, 159 S.W.3d at 101–02.

      We overrule appellant’s first issue.

                                    Conclusion

      We affirm the judgment of the trial court.




                                              Laura Carter Higley
                                              Justice

Panel consists of Justices Keyes, Higley, and Bland.

Do not publish. TEX. R. APP. P. 47.2(b).


                                         15
