Charles Ray Penigar v. State, 02-16-00100-CR

Charles Ray Penigar (born Dec. 9) had a 1988 sexual‑assault‑of‑a‑child conviction requiring lifetime sex‑offender registration and annual verification in a 60‑day window around his birthday.
Penigar began annual registration in 1998 and had a prior conviction for failing to register in 2007.
He was charged for failing to verify registration during the 2014/2015 window (alleged offense date Jan. 9, 2015).
A jury convicted him of failure to comply with sex‑offender registration and found two prior possession convictions qualifying him as a habitual offender.
The trial court sentenced Penigar to 30 years’ imprisonment; the jury also found the 2007 failure‑to‑register conviction during trial.
On appeal Penigar raised three issues: (1) the judgment misclassified the offense as a first‑degree felony, (2) the jury charge erroneously treated a prior failure‑to‑register conviction as an element of guilt, and (3) Texas Local Government Code §133.102(a)(1)’s $133 consolidated court cost is facially unconstitutional.

Issue	Plaintiff's Argument (Penigar)	Defendant's Argument (State)	Held
1. Wrong felony grade in judgment	Judgment incorrectly lists conviction as 1st‑degree felony	Agreed judgment misstates grade; offense is statutory 3rd‑degree	Modified judgment to reflect conviction is a 3rd‑degree felony; point sustained
2. Jury charge included prior conviction as element	Inclusion of 2007 failure‑to‑register in guilt‑innocence charge was error and caused egregious harm	State conceded inclusion was error but argued no egregious harm given the evidence and trial context	Error found but not egregiously harmful; point overruled
3. Facial challenge to §133.102(a)(1) consolidated court cost	$133 court cost violates Texas Separation of Powers and is facially unconstitutional	Statute allocates costs to legitimate criminal‑justice purposes; challenge not preserved but may be raised because cost not imposed in open court	Rejected; statute may operate constitutionally in some applications; point overruled

Ford v. State, 334 S.W.3d 230 (Tex. Crim. App. 2011) (prior conviction for failure to register increases punishment range but not offense grade)
Calton v. State, 176 S.W.3d 231 (Tex. Crim. App. 2005) (enhancement is historical fact that affects punishment, not the substantive elements)
Kirsch v. State, 357 S.W.3d 645 (Tex. Crim. App. 2012) (appellate review rules for jury‑charge error)
Nava v. State, 415 S.W.3d 289 (Tex. Crim. App. 2013) (unpreserved charge error requires showing of egregious harm)
Gelinas v. State, 398 S.W.3d 703 (Tex. Crim. App. 2013) (Almanza framework applied to charge error)
Taylor v. State, 332 S.W.3d 483 (Tex. Crim. App. 2011) (definition and examples of egregious harm)
Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985) (standard for harm analysis when charge error unobjected to)
Peraza v. State, 467 S.W.3d 508 (Tex. Crim. App. 2015) (burden for facial challenge to statute authorizing court costs)