Barker v. State
2011 Tex. App. LEXIS 1041
| Tex. App. | 2011Background
- Appellant Barker pleaded guilty to failure to comply with SORP registration and true to an enhancement; sentenced to six years’ confinement.
- Barker previously was convicted in 2001 of indecency with a child by contact on two occasions, creating a lifelong registration duty under SORP.
- SORP requires lifetime registration for sexually violent offenses, with quarterly registration for those with two such convictions.
- An enhancement allegation tied Barker’s punishment to an aggravated-assault conviction from January 24, 2001.
- Appellant challenged SORP as unconstitutional and challenged the enhancement; the trial court affirmed the six-year sentence.
- The court of appeals analyzed preservation and equal protection challenges, ultimately upholding the judgment and enhancement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does SORP violate equal protection on its face? | Barker argues lifetime, quarterly registration for sex offenders is unequal. | State contends registration rationally related to public safety. | No; SORP's rational basis sustains equal protection challenge. |
| Is Barker’s as-applied equal protection challenge preserved for review? | Barker asserts disparate treatment applies to him personally. | State contends as-applied challenges cannot be raised pretrial. | Not preserved; rejected. |
| Do due process or outlawry claims merit reversal? | Barker asserts due process/outlawry violations under US/Texas constitutions. | State defends constitutionality of SORP as rational. | Waived for appeal; issues not preserved. |
| Must records of prior convictions be admitted to prove the enhancement? | State needed to admit 2001 aggravated-assault conviction to prove enhancement. | Plea to enhancement is sufficient; records not required. | Not required; plea to enhancement suffices. |
| Was enhancement properly applied to Barker’s punishment? | Argues improper because aggravating conviction timing/concurrency complicates use for enhancement. | Enhancement valid under 12.42(b); article 62.102(c) does not preclude 12.42(b). | Enhancement properly applied; overruled. |
Key Cases Cited
- Flores v. State, 904 S.W.2d 129 (Tex. Crim. App. 1995) (non-immutable characteristics do not establish a suspect class)
- Ex parte Robinson, 80 S.W.3d 709 (Tex. App.—Houston [1st Dist.] 2002) (public safety rationale supports registration schemes)
- Ford v. State, 334 S.W.3d 230 (Tex. Crim. App. 2011) (article 62.102 vs 12.42 interplay; enhancement standards clarified)
- Ballard v. State, 149 S.W.3d 693 (Tex. App.—Austin 2004) (treatment of prior sex-offense convictions in SORP context)
- Reyes v. State, 96 S.W.3d 603 (Tex. App.—Houston [1st Dist.] 2002) (precludes treating prior convictions as double-counting in some enhancements)
- Lykos v. Fine, 330 S.W.3d 904 (Tex. Crim. App. 2011) (pretrial evidentiary hearing limits on ‘as applied’ challenges)
- Cutshall v. Sundquist, 193 F.3d 466 (6th Cir. 1999) (sex-offender classifications not inherently suspect class)