                                                                            PD-1482-16
                                                           COURT OF CRIMINAL APPEALS
                                                                           AUSTIN, TEXAS
                                                         Transmitted 12/28/2016 3:07:14 PM
                                                           Accepted 12/30/2016 1:49:35 PM
                                                                            ABEL ACOSTA
                     NO._________________
                                                                                    CLERK

                            IN THE                             FILED
                                                      COURT OF CRIMINAL APPEALS
                                                            12/30/2016
               COURT OF CRIMINAL APPEALS                ABEL ACOSTA, CLERK


                           OF TEXAS



                  CHARLES RAY PENIGAR
                        Petitioner

                                v.

                    THE STATE OF TEXAS
                         Respondent



             Petition is in Cause No. 1424061D from
    Criminal District Court No. One of Tarrant County, Texas,
              and Cause No. 02-16-00100-CR in the
        Court of Appeals for the Second District of Texas



         PETITION FOR DISCRETIONARY REVIEW



A. Clay Graham                       Lauren R. Crisera
TBN: 24064140                        TBN: 24082872
Law Offices of A. Clay Graham        The Texas Building
The Texas Building                   855 Texas Street, Suite 120
855 Texas St., Ste 120               Fort Worth, Texas 76102
Fort Worth, TX 76102                 Tel: 817-631-0000
817-334-0081 (phone)                 Fax: 817-887-4886
817-887-1474 (fax)                   Email: Lauren.R.Crisera@gmail.com
aclaygrahamattorney@gmail.com
                                     Attorneys for Petitioner
                                     Charles Ray Penigar
             IDENTITY OF PARTIES AND COUNSEL

Pursuant to Rule 38.1(a) of the Texas Rules of Appellate Procedure, the
following is a list of all parties to the trial court’s judgment, and
respective trial and appellate counsel:

Presiding Judge
Hon. Elizabeth Beach
Criminal District Court 1
Tarrant County, TX

Attorneys for Appellee         (State of Texas)
Lloyd Whelchel                 (at trial)
Ashlea Deener
D. Graham Norris
Debra Windsor                  (on appeal)
Steven Conder
Tarrant County District Attorney’s Office
401 West Belknap
Fort Worth, Texas 76196

Attorneys for Appellant
C. Mark Nelon                   (at trial)
1515 Eighth Ave.
Fort Worth, Texas 76104

A. Clay Graham                (on appeal)
Law Offices of A. Clay Graham
The Texas Building
855 Texas St., Ste 120

Lauren R. Crisera
855 Texas Street, Suite 120
Fort Worth, Texas 76102

Petitioner
Charles Ray Penigar




                                   i
                                    TABLE OF CONTENTS
                                                                                                            page

IDENTITY OF PARTIES AND COUNSEL...............................................i

TABLE OF CONTENTS..............................................................................ii

INDEX OF AUTHORITIES.......................................................................iii

STATEMENT REGARDING ORAL ARGUMENT..................................1

STATEMENT OF THE CASE.....................................................................1

STATEMENT OF PROCEDURAL HISTORY..........................................1

GROUNDS FOR REVIEW...........................................................................2

REASONS FOR REVIEW............................................................................2

ARGUMENT.................................................................................................2

         Did the court of appeals err when it held that the jury
         charge error did not cause egregious harm to Petitioner?...........2

A.       Facts.....................................................................................................2

B.       Opinion Below.....................................................................................4

C        Harm Analysis ....................................................................................9

PRAYER FOR RELIEF...............................................................................12

CERTIFICATE OF COMPLIANCE.........................................................13

CERTIFICATE OF SERVICE....................................................................13

APPENDIX..................................................................................................14



                                                        ii
                         INDEX OF AUTHORITIES

Cases                                                                         page

Almanza v. State,
     686 S.W.2d 157 (Tex. Crim App. 1984)...........................6, 7, 10-11

Belcher v. State,
       474 S.W.3d 840 (Tex. App.–Tyler 2015, no pet.).........................10

Couret v. State,
      792 S.W.2d 106 (Tex. Crim. App. 1990)..................................10, 11

Gigliobianco v. State,
      210 S.W.3d 637 (Tex. Crim. App. 2006)........................................10

Ex parte Menchaca,
      854 S.W.2d 128 (Tex. Crim. App. 1993)..........................................6

Penigar v. State,
      No. 02-16-00100-CR, 2016 WL 7405812 (Tex. App.–
              Fort Worth, Dec. 22, 2016, no. pet. h.)
                    (mem. op., not designated for publication).....1, 4-5

Saunders v. State,
     817 S.W.2d 688 (Tex. Crim. App. 1991)........................................11

Stuhler v. State,
      218 S.W.3d 706 (Tex. Crim. App. 2007)..........................................6

Theus v. State,
      845 S.W.2d 874 (Tex. Crim. App. 1992)..........................................6

Williams v. State,
      662 S.W.2d 344 (Tex. Crim. App. 1983)..........................................6

Williams v. State,
      273 S.W.3d 200 (Tex. Crim. App. 2008)..........................................6


                                         iii
Court Rules

T EX. R. A PP. P. 66.3(f)...................................................................................2




                                                     iv
         STATEMENT REGARDING ORAL ARGUMENT

      Petitioner does not believe that oral argument will materially

assist the Court in its evaluation of matters raised by this pleading and

therefore respectfully waives oral argument.

                    STATEMENT OF THE CASE

      On August 17, 2015, Charles Ray Penigar (“Mr. Penigar” or

“Penigar”) was indicted for the felony offense of failure to comply with

sex offender registration duties, alleged to have occurred on or about

January 9, 2015. [C.R. 5]. On March 1, 2 and 3, 2016, a jury trial was

held in Criminal District Court Number One of Tarrant County, Texas.

[IV–VIII R.R. passim]. The jury found Mr. Penigar guilty as charged in

the indictment. [VI R.R. 136]. Punishment was to the jury, which

sentenced Mr. Penigar to thirty (30) years incarceration. [VIII R.R. 25].

A Timely Notice of Appeal was filed on March 3, 2016. [C.R. 74].

            STATEMENT OF PROCEDURAL HISTORY

      The Second Court of Appeals affirmed Mr. Penigar’s conviction

on December 22, 2016. Penigar v. State, No. 02-16-00100-CR, 2016 WL

7405812 (Tex. App.–Fort Worth, Dec. 22, 2016, no. pet. h.)(mem. op., not

designated for publication). This Petition is therefore timely.




                                    1
                      GROUNDS FOR REVIEW

                    GROUND FOR REVIEW ONE

      Did the court of appeals err when it held that the jury
      charge error did not cause egregious harm to Petitioner?

                          REASONS FOR REVIEW

1.    The Second Court of Appeals has so far departed from the
      accepted and usual course of judicial proceedings as to call for
      an exercise of the Court of Criminal Appeals’ power of
      supervision. See T EX. R. A PP. P. 66.3(f).

                              ARGUMENT

              GROUND FOR REVIEW ONE (Restated)

      Did the court of appeals err when it held that the jury
      charge error did not cause egregious harm to Petitioner?

A.    Facts

      Based on a previous conviction, Appellant had a lifetime duty to

register yearly under Chapter 62 of the Texas Code of Criminal

Procedure. [V R.R. 42, 56]. Appellant’s duty to register began in 1998,

while he initially registered with the Fort Worth Police Department in

2005. [V. R.R. 42, 47].

      Appellant had a duty to yearly verify his registration within time

period between 30 days prior to his birth date and 30 days after his

birth date. [V R.R. 39]. Appellant’s birth date is December 9, so his



                                   2
window to annually verify his registration is between November 9 and

January 8. [V R.R. 39]. On January 13, 2015, Appellant contacted the

registration unit of the Fort Worth Police Department to schedule the

appointment for December 9, 2014, annual verification. [V R.R. 52]. He

was given an appointment date of March 26, 2015. [V R.R. 52].

Appellant failed to appear for that March 26, 2015, appointment. [V

R.R. 52]. A warrant was issued for Appellant based on his failure to

verify his annual registration, he was arrested on that warrant in

August of 2015. [V R.R. 54, 55].

       Appellant testified at trial in his own behalf. [VI R.R. 63].

Appellant corroborated that he had an appointment in March of 2015

to verify his annual registration. [VI R.R. 66-67]. He also testified that

he was assaulted a few weeks prior to that appointment and rendered

unconscious.1 [VI R.R. 67-68, 92]. As a result of that assault, Appellant

suffered a loss of memory to the point where he no longer remembered

that he had an appointment on March 26, 2015, to verify his annual




1

Further evidence showed that Appellant had been brutally assaulted with a
baseball bat in October of 2014, in which he had suffered severe head injuries.
[VI R.R. 39-40, 105].

                                      3
registration.2 [VI R.R.68, 70]. He further testified that he never intended

to miss his annual verification appointment. [VI R.R. 71-72, 111].

    The trial court’s instruction to the jury on guilt/innocence stated in

pertinent part:

         ... 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 1067661 D, 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.

[C.R. 49]. Appellant did not object to the jury charge.

         The jury found Appellant guilty as charged in the indictment. [VI

R.R. 136]. Punishment was to the jury, which sentenced Appellant to

thirty (30) years incarceration. [VIII R.R. 25].

B.       Opinion Below

         The Second Court of Appeals admitted that the trial court’s

charge to the jury on guilt/innocence was erroneous. Penigar, 2016 WL



2

The evidence at trial showed that Appellant gave a written statement when
he was arrested on the instant offense in which he swore that he had lost his
memory regarding his appointment to verify his annual registration set for
March of 2015. [VI R.R. 69-70].

                                      4
7405812 at *3. The lower court then performed a perfunctory analysis

under the Almanza factors, and essentially held that since the evidence

presented by the State pertaining to the instant offense was sufficient

to prove Appellant’s guilt, the taint cast upon the trial due to the

erroneous jury charge did not rise to the level of “egregious” harm. Id.

The opinion ignored the inflammatory and prejudicial effect the

evidence of Appellant’s prior conviction for the identical offense would

have on the minds of the jury–evidence which was admissible in part

due the trial court considering the prior conviction to be an element of

the instant offense; said belief being manifested in the jury charge.

C.    Harm Analysis

      As the State and the court below admitted that the charge was

erroneous, only a harm analysis is necessary here.

      This Court has held that

      Jury-charge error is egregiously harmful if it affects the very
      basis of the case, deprives the defendant of a valuable right, or
      vitally affects a defensive theory. In examining the record to
      determine whether jury-charge error is egregious, the reviewing
      court should consider the entirety of the jury charge itself, the
      evidence, including the contested issues and weight of the
      probative evidence, the arguments of counsel, and any other
      relevant information revealed by the record of the trial as a
      whole.



                                   5
Stuhler v. State, 218 S.W.3d 706, 719 (Tex. Crim. App. 2007)(citations

omitted). The first Almanza factor is “the entire jury charge.” Almanza

v. State, 686 S.W.2d 157, 171 (Tex. Crim App. 1984). In this case, the

substance of the charge consisted of three pages, two of which

referenced and informed the jury of Appellant’s prior conviction for

failing to register as a sex offender.3 [C.R. 48, 49]. The jury was thus

further bombarded with the prejudicial fact of Appellant’s prior

conviction for the very same offense that the jury was deliberating. See

Williams v. State, 662 S.W.2d 344, 346 (Tex. Crim. App. 1983)

(recognizing “inherently prejudicial” nature of extraneous offense

evidence); see also Ex parte Menchaca, 854 S.W.2d 128, 132-33 (Tex. Crim.

App. 1993) (recognizing prejudicial effect of allowing jury to hear

defendant had prior conviction for same offense for which he was

being tried). This factor weighs in favor of Appellant.

       The second Almanza factor is “the state of the evidence, including



3

Even though Appellant’s testimony arguably rendered the fact of the prior
conviction admissible for impeachment purposes, a limiting instruction to
the jury would have been granted by the trial court had one been requested.
See e.g., Theus v. State, 845 S.W.2d 874, 881 (Tex. Crim. App. 1992). Since a
limiting instruction was not requested by Appellant, the trial court was
under no obligation to include such an instruction in the charge. Williams v.
State, 273 S.W.3d 200, 230 (Tex. Crim. App. 2008).

                                     6
the contested issues and weight of probative evidence.” Almanza, 686

S.W.2d at 171. The State of the evidence showed that Appellant had a

duty to register yearly for the rest of his life; that he had done so for a

number of years; that he failed to register as alleged in the indictment;

but that multiple assaults inflicted upon him had interfered with his

ability to present himself to the registering authority initially, and

impaired his memory of his duty to register secondarily. Of note, the

State felt it relevant to this case to present evidence to the jury of

Appellant’s 2007 conviction for failure to register. [V R.R. 78; VI R.R.

23-28; IX R.R. St. Exs. 1, 2, 5, 6]. This factor weighs neither for nor

against Appellant.

       The third Almanza factor is “the argument of counsel.” Almanza,

686 S.W.2d at 171. From the very beginning of this case in its opening

statement, the State emphasized Appellant’s prior conviction for failing

to register, stating:

       And what you’re going to learn is that he had a
       requirement, a duty to register as a sex offender. You’re
       going to learn that he understood that requirement. This
       is not something where he didn’t understand what was
       required of him. Okay. This has been the case since 1990.
       Okay. What you're going to hear about is the fact that he’s
       done this before. He failed to register in 2007 and was
       convicted of that. What you’re going to further hear about


                                     7
      is that this past year, he decided to do it again.

[V R.R. 9].

      In its closing argument, the State again reminded the jury:

      What you also heard is in 2007, he was convicted of not
      complying with those registration requirements. That's
      already happened. He’s already done time for that. So
      we've proved that, and you've got the official court
      document there.

[VI R.R. 120-21].

      In response, counsel for Appellant was forced to discuss the

prior conviction as well, stating:

      Why are we here? They allege that in 2007, Mr. Penigar
      failed to register. In 2007, Mr. Penigar, in this court,
      different judge, walked into court and said, I’m guilty. I
      messed up. I’m willing to go to prison because I made a
      mistake. I messed up. He fully admitted it. The State is
      right. He could have marched in here and demanded a
      jury trial, but he didn’t. He said, I'm guilty, I will go to
      prison for that, and he did. He admitted that on the stand.

[VI R.R. 126].

      The State returned to that same well once again in it’s closing

argument:

      So I guess we should just give him credit for committing
      sexual assault and pleading guilty to it. And I guess we
      should let him off of this for back in 2007 for pleading
      guilty ... So I guess by Defense attorney’s argument, what
      we’re here today to do is say let him off because he took


                                     8
      responsibility and he pled guilty before. Maybe now --
      maybe now the State is not willing to do an offer, what we
      were before, because when you continue to make these
      kind of mistakes, we learn. It is my job to protect each and
      everyone of us, our community, our children, those that
      don’t know about him. That is why we have these laws in
      place. And for Defense counsel to act like there is some
      reason we should give him a way out because he pled
      guilty to these offenses doesn’t make any sense. The fact
      that now he doesn’t want to take responsibility for it and
      he wants to come up with stories as to what happened,
      that doesn't mean he gets a free pass. Every time
      somebody is charged with failure to register as a sex
      offender, why don’t they just come up hereand say they
      got hit in the head, because that’s what they’re asking you
      to do. They’re asking you to walk him out of the door, not
      hold him responsible because he has come up with a story
      that he was assaulted. That’s not what the law says.

[VI R.R. 129-31].

      Finally, the last argument the jury heard in this case–and again

made possible only because the trial court’s jury charge contained the

prior conviction as an element of the charged offense:

      When you look at all of the evidence in this case, it is very
      clear that we’re asking you to hold him responsible for
      what happened in the choices that he made. We’re going
      to ask you to find him guilty of failing to register with a
      prior conviction of failure to register. Thank you.

[VI RR. 135].

      That the State repeatedly emphasized the prior conviction is

understandable; evidence of a prior conviction often unfairly sways


                                    9
jurors to convict–that’s why propensity evidence is generally excluded.

See e.g., Belcher v. State, 474 S.W.3d 840, 848 (Tex. App.–Tyler 2015, no

pet.) (recognizing highly prejudicial nature of propensity evidence).

Here, the State never tired of confronting the jury with Appellant’s

prior failure to register conviction; the record shows that the closing

arguments comprised only seventeen pages of transcript, [VI R.R. 119

35], yet various references to that prior conviction appears on seven of

those seventeen pages. [IV R.R. 120-21, 126, 129-31, 135]. The State’s

focus on Appellant’s prior record would tend to distract or confuse the

jury, leading it to believe that Appellant was on trial for being a

criminal generally. See e.g., Gigliobianco v. State, 210 S.W.3d 637, 641

(Tex. Crim. App. 2006) (“Evidence that consumes an inordinate amount

of time to present or answer, for example, might tend to confuse or

distract the jury from the main issues.”); Couret v. State, 792 S.W.2d 106,

107 (Tex. Crim. App. 1990) (holding that a defendant has a right to be

tried for the offense for which he is charged, and not for some collateral

crime or for being a criminal generally). This factor weighs in favor of

Appellant.

      The fourth Almanza factor is “any other relevant information



                                    10
revealed by the record of the trial as a whole.” Almanza, 686 S.W.2d at

171. There was no other relevant information presented at trial which

is necessary to determining this point of error.

      In sum, the erroneous jury charge not only allowed the jury to

consider Appellant’s prior conviction at the guilt stage for all purposes,

the issue allowed the jury to convict Appellant for being a criminal

generally. See Couret, 792 S.W.2d at 107. This circumstance was

exacerbated by the State’s repeated and continuous reference to the

prior registration offense–in large part legitimated by the inclusion of

the prior conviction as an element of the offense as instructed by the

trial court’s charge to the jury. The inclusion of the prior conviction in

the charge on guilt/innocence vitally affected Appellant’s defensive

theory, and made the case for conviction clearly and significantly more

persuasive. See Saunders v. State, 817 S.W.2d 688, 692 (Tex. Crim. App.

1991); see also Almanza, 686 S.W.2d at 172. Under the facts presented at

trial and as shown above, Appellant suffered egregious harm due to

the defective jury charge, requiring the lower court to reverse the

conviction. Almanza, 686 S.W.2d at 171. Because the lower court failed

to do so, this Court has the opportunity to correct that error and should

grant the Petition.

                                    11
                        PRAYER FOR RELIEF

      WHEREFORE, PREMISES CONSIDERED, Petitioner respectfully

prays that this Court grant discretionary review and allow each party

to fully brief and argue the issues before the Court of Criminal

Appeals, and that upon reviewing the judgment entered below, that

alternatively, this Court vacate the opinion of the Second Court of

Appeals and remand for full consideration of Petitioner’s complaint on

appeal; or remand to the trial court for new trial.

                                 Respectfully submitted,

                                 /s/ A. Clay Graham
                                 A. Clay Graham
                                 TBN: 24064140
                                 Law Offices of A. Clay Graham
                                 The Texas Building
                                 855 Texas St. Ste 120
                                 Fort Worth, TX 76102
                                 817-334-0081 (phone)
                                 817-887-1474 (fax)
                                 Email:aclaygrahamattorney@gmail.com

                                 Lauren R. Crisera
                                 TBN: 24082872
                                 The Texas Building
                                 855 Texas Street, Suite 120
                                 Fort Worth, Texas 76102
                                 Tel: 817-631-0000
                                 Fax: 817-887-4886
                                 Email: Lauren.R.Crisera@gmail.com
                                 Attorneys for Petitioner
                                 Charles Ray Penigar

                                   12
                 CERTIFICATE OF COMPLIANCE

       I hereby certify that the word count for the portion of this filing
covered by Rule 9.4(i)(1) of the Texas Rules of Appellate Procedure is
2,388.
                                  /s/ A. Clay Graham
                                  A. Clay Graham

                     CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the foregoing
instrument has been furnished to counsel for the Tarrant County
District Attorney and the State Prosecuting Attorney listed below
pursuant to Rule 9.5(b)(1) of the Texas Rules of Appellate Procedure
through the electronic filing manager, as opposing counsel’s email
address is on file with the electronic filing manager, on this 27th day of
December , 2016.

                                 /s/ A. Clay Graham
                                 A. Clay Graham

Debra Windsor
Tarrant Co. District Atty’s Office
401 West Belknap
Fort Worth, Texas 76196

Lisa McMinn
State Prosecuting Attorney
P.O. Box 13046
Austin, TX 78711-3046




                                     13
                          APPENDIX

1.   Opinion of the Second Court of Appeals, December 22, 2016.




                               14
                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-16-00100-CR


CHARLES RAY PENIGAR                                                   APPELLANT

                                         V.

THE STATE OF TEXAS                                                          STATE


                                      ----------

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

                                      ----------

                         MEMORANDUM OPINION1

                                      ----------

                                 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.




                                         2
      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


                                         3
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.


                                          4
                             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


                                         5
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


                                          6
      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


                                          7
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


                                           8
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


                                         10
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.




                                        11
                               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




                                      12
                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                               NO. 02-16-00100-CR


Charles Ray Penigar                       §    From Criminal District Court No. 1

                                          §    of Tarrant County (1424061D)

v.                                        §    December 22, 2016

                                          §    Opinion by Justice Walker

The State of Texas                        §    (nfp)

                                   JUDGMENT

      This court has considered the record on appeal in this case and holds that

there was error in the trial court’s judgment. The judgment is modified to reflect

that Penigar was convicted of a third-degree felony.        It is ordered that the

judgment of the trial court is affirmed as modified.


                                     SECOND DISTRICT COURT OF APPEALS

                                     By __/s/ Sue Walker__________________
                                        Justice Sue Walker
