*1 question hypothetically that the cor is no CAMPBELL, Craig Ex Parte Ronald have jury charge for this case would
rect Applicant. of jury appellant to convict authorized party as a under Texas capital murder No. AP-75838. 7.02(b). 7.02(a)(2) § §or Con Penal Code Appeals of Texas. Court of Criminal here, it is trary appellant’s argument sufficiency in a review that the irrelevant 15, 2008. Oct. paragraph charge actual application only the law ly given erroneously applied 7.02(a)(2). § v. parties under Grissom
State, (Tex.Crim.App. 267 S.W.3d
2008). Thus, was re appeals the court of factually
quired to deem the evidence suffi for appellant’s conviction support
cient to factual murder if the evidence was
capital theory
ly party sufficient under either Yet,
liability. appeals court of deemed without factually
the evidence insufficient sufficiency of the evi
assessing the factual 7.02(b). so, failing In to do
dence under therefore appeals
the court of erred. We ground first for review.
sustain the State’s light disposition our of the State’s review, dismiss the ground for we
first remaining grounds for review.
State’s of the court of judgment
We vacate the the case to that court
appeals and remand sufficiency the factual
so that it assess con- support appellant’s the evidence to party under capital murder as
viction 7.02(b). appeals If the court of deter- factually suffi- that the evidence is
mines conviction for support appellant’s
cient 7.02(b), party murder as
capital proceed to address
then that court will remaining points of error.
appellant’s
KEASLER, J., in the result. concurred
ly release. We hold that the sex authorized statute general, conditions in child *3 offender in particular, zone condition and we hold that these con- applicant, this in imposed ditions were not violation process. due
I. BACKGROUND 1992, applicant guilty In to bur- pleaded building1 an habitual offend- glary of as years thirty-five and was sentenced to er prior felony con- prison. addition to victions, prior had two mis- applicant also ex- convictions: one for indecent demeanor According posure3 and one for assault.4 report exposure in the indecent police case, four applicant exposed had himself to on their young playing children who were pants, his Applicant unzipped front lawn. said, out, “[H]ey girl, pulled penis look,” penis and moved his around with his police report hand. A the assault case Stevens, appellant. Perry Angleton, way had forced his applicant indicated that home, tried sixty-year-old into a woman’s Jones, D.A., Angleton, Raethella Asst. and moved to- spread legs apart, her Horn, Attorney, Jeffrey L. State’s Van report The indicated genitals. ward her Austin, for State. attorney’s origi- the district office had that arresting officer to file nally advised KELLER, P.J., opinion delivered the charge. attempted sexual assault WOMACK, the Court which COCHRAN, HERYEY, KEASLER, and 5, 2006, released July applicant was On JJ., joined. “L”— special condition parole,5 with supervi- maximum level of requiring to determine filed and set this case We 10, 2006, divi- July On and under what circumstances sion. whether of Crimi- Department sion of the Texas who never been convicted of releasee has that was applicant nal Justice notified required offense” “reportable pan- considering requesting sex offender conditions of ear- comply with application, the trial 5.Applicant's habeas Applicant was 1. See Tex. Pen.Code 30.02. charged findings, the variants of and this Court’s “file court’s require proof to commit theft or the having of intent applicant been order all refer to set” attempted commission or commission mandatory supervision. Exami- released on id., 30.02(a)(1), (3). reveals, theft. See howev- of the official records nation er, parole, was released id., 12.42(d). 2. See mandatory supervision. id., § 21.08. 3. See id., § 22.01.
4. See church, work, el of the Board of emergencies, Pardons and Parole medical treatment; special prohibit- condition “X”—sex offend- sex offender distance, er conditions. in- July 10th notice going ed from within a certain right formed that he had a specified by the Board of Pardons and submit Parole, information on his own behalf to premises where children com- give why reasons the sex offender condi- monly gather. imposed. tions should not be The notice 27, 2006, applicant On November admit- gave August a deadline of Ap- ted to officer he had been
plicant response. did not submit a going every day to his father’s house 11, 2006, August parole panel On the p.m. week between 5:30 and 6:30 hearing held a Applicant on the matter. he was aware that his father’s house was not given opportunity was to attend safety Applicant a child zone.6 stated this hearing. parole panel voted to that he went to his father’s house to eat impose special (other), condition “O” or- and shower sponsor because his house did dering applicant to submit to a sex offend- Subsequently, not have hot water. appli- 24, 2006, er evaluation. August On appli- parole cant’s was revoked for failure to cant submitted to a sex offender interview follow the instructions of parole his officer Pierce, with Aaron P. During Ph.D. and for failure to avoid child zones. interview, Pierce asked applicant to ex- application In an for a of writ habeas plain his arrests for the two offenses out- that, corpus, applicant contended be- after lined in the notice. respect With to the ing paroled mandatory supervision, out on case, assault applicant replied that he was parole panel “tacked on” sex offender drunk and intended to break into a house. registration programs and treatment in vi- When asked whether attempted he to en- olation of rights. his constitutional He gage activity in sexual with the woman in claimed that he “was never convicted of house, stated, “I don’t think any sex related offenses to initiate said so; I respect was drunk.” With conditions.” He further claimed that exposure case, indecent applicant said he “child zone” condition should never just was “taking a leak in an area where applied have been to him and that he there were kids.” Based an- those should be released back to su- swers and other information obtained in pervision without sex offender conditions. interview, Pierce recommended designating After receiving issues and required complete “a sexu- documents, an affidavit and various specific al offense program.” treatment district following findings court made the 6, 2006, On October of fact: imposed special condition X. Included (1) [Applicant] has never been convicted special within condition X was a child safe- adjudicated guilty “reportable” of a ty 11, 2006, zone condition. On October 62.001(5), offense as defined Article applicant received notice of the additional Procedure; Code of Criminal parole conditions from his officer. The (2) report officer’s appli- indicated that There was a sexual component confinement; cant was under home applicant’s prior was ex- offense indecent permitted however, to leave his only posure; applicant’s residence for it was first (applicant’s 6. The house was within testimony). Applicant 500 feet of what was ter had (according previously either a "Head Start” school been moved from that residence to allegations) day sponsor the revocation or a care cen- residence. part a crucial comprises exposure; there- cause Coleman conviction for indecent fore, conviction we discuss before reportable applicant’s arguments, it is not a 62.001(5), Article Code of Crimi- turning applicant’s contentions. Procedure; nal (3) Applicant did not violate conditions A. Coleman that resulted mandatory supervision released on Coleman was mandatory su-
in the revocation of his
parole, he
burglary conviction.8 While on
conditions relat-
pervision, because those
assault
aggravated
sexual
was indicted
apply
did not
ing to sexual offenders
indecency
a child
of a child and
applicant.
to, and was
pleaded guilty
He
contact.9
fact,
findings of
the district
Based on its
of,
assault,
only
and his
convicted
following
made the
conclusions
court
was revoked.10
conviction
law:
mandatory super-
He
later released to
did not violate conditions
Applicant
*5
offense,
the con-
vision on the
that
mandatory supervision
resulted
halfway house
in a
dition that he reside
mandatory
of his
su-
in the revocation
that,
a month after
employed.11
until
Over
relat-
those conditions
pervision, because
a hear-
affording advance notice or
without
apply
did not
ing to sexual offenders
additional
parole panel imposed
a
two
ing,
applicant;
as a
register
release:
that he
conditions of
(2)
mandatory
Applicant is entitled
attend sex offend-
offender and that he
related con-
sex
release without sex-offender
partici-
failed to
therapy.12
er
Coleman
ditions.
therapy, and as a
in sex offender
pate
II. ANALYSIS
result,
release
supervision
relying upon
Citing various statutes and
revoked.13
contends
v.
Coleman
Dretke>7
sex of-
argued
imposing
that
Coleman
may be im-
that sex offender conditions
therapy as condi-
registration
fender
and
a
only
offenders who have
posed
release,
affording
early
without
tions of his
Chapter 62.
“reportable offense” under
offender
opportunity to contest his sex
Coleman,
relying upon
ap-
Alternatively,
Fifth
status,
process.14 The
violated due
condi-
that sex offender
plicant contends
procedural
due
explained that
Circuit
upon him violation
imposed
tions were
to sex offend-
inquiry
respect
process
(1)
because
he had not been
process
of due
elements:
of two
er conditions consisted
offense”
“reportable
convicted of a
(1)
had
complaining party
whether
of sex offender
justify imposition
would
having
in not
sex offender
liberty interest
(2) he
hearing,
and
conditions without
release,
early
imposed on his
conditions
notice that he was
given
was not
advance
so,
provided
if
whether the State
condi-
for sex offender
being considered
be-
constitutionally
procedures
Be-
sufficient
respond.
opportunity
tions and an
Cir.2004).
(5th
12.
Id.
7.
8. Id. at 219. 13. Id. Id. Id. at 221. Id.
11.Id. imposing counseling stigma- fore the conditions.15 The court were classification explained liberty further interest in- tizing, counseling and the sex offender may arise from two sources: the Due Pro- intrusive, behavior-modifying volved tech- cess Clause itself state law.16 The Fifth niques.22 Consequently, the sex offender Circuit concluded that the Due Process imposed upon conditions Coleman were guarantees Clause itself a prisoner some “qualitatively different” from the usual process before the can impose State condi- conditions attend inmate’s re- qualitatively tions “that are different from lease.23 The Fifth Circuit also cited cases punishment characteristically suffered from Ninth and Eleventh Circuits by a person crime, convicted of the support of the conclusion that “prisoners which have stigmatizing consequences.”17 who have not been convicted of sex The court characterized restrictions liberty offense have interest created early attend release as “an established Due Process Clause freedom from variation on imprisonment of convicted sex offender classification and condi- criminals” and found that a condition of tions.” early “may present release such a dramat- Because the sex offender im- conditions departure ic from the basic of a conditions posed on implicated liberty Coleman in- parolee’s sentence that the pro- state must terest, legitimately the State could have vide some procedural protections prior to imposed those if only conditions it had its imposition.”18 determined, affording after ap- Coleman *6 In addressing whether the sex offender propriate procedural protections, that conditions imposed on Coleman were a Coleman society constituted “a threat to norm, dramatic departure from the by reason of his lack of sexual control.”25 Fifth Circuit Supreme discussed the Court offense,” “Absent a conviction of a sex case of Vitek v. Jones,19 which held that concluded, Fifth Circuit the State must process due requires procedural protec- appropriate hearing” afford “an at which tions may before inmate be involuntari- such a determination can be made.26 ly committed to a mental institution.20 Based the combination of stigma and Impose B. Authorization to compelled behavior-modification treat- the Condition at All ment, the Supreme Court held that invol- It is that untary undisputed applicant does commitment to a mental institution implicated “reportable not have a conviction” constitutionally protected under lib- erty statute, registration interest.21 The Fifth sex offender Circuit found the facts of its case to materially be indis- which does not list assault or from Vitek: sex tinguishable theft, only offender with intent to commit and lists Vitek). 15. Id. (citing 21. Id.
16. Id. 22. Id. at 223. (internal omitted). quotation
17. Id. marks 23. Id. (internal quotation 18. Id. at 222 marks omit- ted). 222, 24. Id. at 222 n. 26.
19. 445 U.S.
100 S.Ct.
63 L.Ed.2d
Id. at 225.
(1980).
Coleman,
More section 508.221 broad, exposure an offense authority parole probation on a for indecent general fers Id., § 31. 508.226. 62.001(5), See Tex.Code Crim. Proc. 27. art. (5)(F). specifically more Id., § 508.221. ("A parole 28. See Tex. Gov’t Code § parole panel require as a condition of shall 42.12, 11(a). § art. 33. Tex.Code Crim. Proc. mandatory supervision that a releasee re- register quired to as a sex offender under ("in- § 21.08 34. See the text of Tex. Pen.Code Chapter ful- Code of Criminal Procedure” gratify the sexual desire of tent to arouse or id., conditions); § 508.187(b)("A certain fill Code, any person”) the title of Penal safety parole panel shall establish a child ("Sexual Offenses”). Chapter 20 circumstances with cer- zone” under certain conditions). tain 42.12, 35. Tex.Code Crim. Proc. 9A(a)(2)(B). § 508.225(a). Code 29. Tex. Gov’t id., M,§ ll(i). passim. 508.225, 30. See % against say they committed a child.37 ence that people thing Given when one general authority granted a parole panel something do not mean else.”41 In consid- impose any ering probation per- application logic condition of of a rule of 42.12, law, mitted article it would be to common sense to courts should odd prohibit imposition safety Leg- of a child also consider the broad discretion obviously zone as a condition of islature intended to first- confer time exposure appropri- indecent offense when it authorities to fashion required would be as a ate proba- parole. condition of conditions of tion under article 42.12. Second, operates only the maxim when a comprehensive treatment of the dissent contends subject matter is intended or when ad by authorizing discretionary dressing exception general to a rule.42 of child 3g zones for of An express grant authority does not fenders, impliedly prohibits the discretion itself give rise to an inference that matters ary imposition of a child zone condi express grant outside the prohibited. are non-3g tion for offenses under the maxim Dallas, express we held that the grant expressio unius est exclusio alterius —ex authority impose conditions bail on pressing thing one implies the exclusion of appeal in felony cases did not result in an what expressed.38 was not For several implied prohibition against imposing condi reasons, we find the argument dissent’s tions of bail on appeal in misdemeanor be unpersuasive. cases.43 While the entire statute address First, maxim expressed by ing bail pending appeal could be accurately dissent is not an inflexible rule but comprehensive, characterized as provi merely an aid in construction.39 Though it sion from which the appeals court of “has widespread had legal application,” “it implied prohibition claimed the flowed— is not a rule of law and there is nothing addressing in felony bail cases—was not. particularly legal about it.”40 The maxim explained We that the courts had inherent is “a product logic sense, and common power conditions of bail both expressing the learning of common experi- felony cases, and misdemeanor and we Id., 13B(a)(l)(B), (b)(2)(‘‘(a) State, judge If a 39. Williams v. 965 S.W.2d grants community supervision (Tex.Crim.App.1998). to a defendant *8 (b) judge described Subsection and the determines that a child ... was the victim of 40. Id. offense, judge the the shall establish child safety applicable zone to the defendant .... 41. Id. (b) applies placed This section ato defendant community supervision on for an offense ... State, 276, (Tex. 42. Dallas v. 983 S.W.2d 278 Code.”). under Section 21.08 ... Penal Crim.App.1998)(‘‘if specifies statute one ex ception general specify to a rule or assumes to Although provision, excep 38. See at the effects dissent 928. the of certain other dissent excluded”). 13B, tions or are discusses 508.197 and effects article acknowledges provisions it that those outline 278-80; the circumstances under which the child safe- 43. Id. at see also TexCode Crim. Proc. ty mandatory, zone condition is 44.04(a)(authorizing rather than misdemeanor bail discretionary, appear and it containing language specifically does not to be but no autho- contending mandatory bail), provisions rizing that the (c)(providing can conditions of in fel- give implied prohibi- ony "may themselves rise to an impose cases that the court reason- parole panel’s tion discretionary pending finality authori- able conditions on bail the of ty- conviction”). [the defendant’s]
924
accomplices
fled that there
to all
provision for condi-
express
held that the
except manslaughter
negli-
offenses
felony
in
cases did not disturb
tions of bail
separate
spe-
A
statute
gent homicide.48
authority
inherent
long-held
the courts’
abortion,
1072, provided
cific to
article
for
regard to misdemeanors.44
with
theory
accomplice liability
re-
of
with
au
general
confers
Section 508.221
Despite
spect to abortion offenses.49
the
impose condi
thority
parole panels
1072,
abortion-specific provision
article
may in its
parole. Chapter 508
tions of
general parties
held that
the
this Court
totality
comprehensive
scheme
constitute
to the offense of
applied
statute
abortion.50
to the
of conditions
regard
Significantly, this Court stated: “If the
dissent,
But, according to the
parole.
alterius,
rule,
est exclusio
expressio unius
against the discre
implied prohibition
the
statute,
unquestion-
at all to this
it
applies
tionary imposition
safety
of child
zones
give
ably is in favor of the construction we
explicit grant
from the
of discretion
flows
articles,
the re-
instead of
several
§in
That
ary authority found
508.225.
verse,
excepts
expressly
for as the statute
comprehensive
purport
section does
homicide from
manslaughter
negligent
and is not
ly regulate parole conditions
79,
Legisla-
if
application
of article
the
rule.
exception
general
framed as an
to a
it
except
intended to
abortion
ture had
Dallas, then,
express grant
Under
said so and
unquestionably would have
safety zones for
authority
impose
child
that in article 85.”51
included
of offenders under
one class
observed, Chapter
have
508 does
As we
parole panel’s general
does not override
orchiectomy
exclusion:
express
contain an
a child
zone
authority
as a condition of
prohibited
offenders.45
condition on other classes of
This exclusion
mandatory supervision.
If
are no other exclusions.
suggests there
Third,
exclusion
express
an
prohibit
had intended to
Legislature
statutory
negate the existence
scheme will
except
expressly
child
zones
where
v.
exclusions.
Fondren
implied
expressly
done so.
provided,
could have
State,
prosecuted
the defendant was
non-existent)
(now
Fourth,
crime of abortion.46
scheme does contain
accomplice
authorizing special
an
prosecuted
express provision
He was
as
offenders,
including
accomplice statute that existed
conditions for sex
general
position,
that would
time,
speci-
appellant’s
someone
at
article 79.47 Article 85
552,
(1914).
Dallas,
925 logically objection include a child zone: article dissent’s seems trial 11(1). 42.12, above, § explained As court did not order the evaluation. Article § permits any 508.221 imposition 42.12 to the trial court refers because 42.12, by statute; condition authorized article and the in probation point at that ll(i) 42.12, § article permits judge who process, criminal the offender is in the grants probation § to a 9A sex offender to prereq- trial court. Even if evaluation is a require that the offender “submit treat- application uisite Government Code ment, specialized 508.221, supervision, § or rehabili- surely point is not who or- according evaluation, tation to offense-specific stan- simply ders the but dards of practice adopted by evaluated, the Council offender be as he was in this on Sex Offender Treatment.” In a foot- case. note, says the dissent that it is not at all Finally, it is not self-evident to the ll(i) § clear that applies applicant, but dissent that of a child gives
the dissent explanation no for its “treatment, zone specialized constitutes su conclusion.52 “Sex offender” is defined pervision, or rehabilitation.”57 It is evi § person 9A as “a who been has convicted dent to us that it does. Under “Issues to plea has entered a of guilty or nolo Treatment,” Be in Addressed the Rules offense, contendere” for a listed including Regulations Relating to Council on exposure,53 indecent of which applicant has Sex Offender specify Treatment “Effective been convicted. Because this definition is arousal or impulse control shall include conjunction to be used presentence spontaneous methods to control deviant investigation reports,54 it seems clear that fantasies and to minimize contact with ob “has been convicted” prior includes convic- jects persons within the deviant fanta tions, just and not the conviction in the 58 sies.” case in which the placed defendant is probation.55 well, noting, It is worth as that, ll(i) dissent further 42.12, contends §§ even article 9A and were enacted if applicant qualified ll(i), 2003,59 § “there § after the enactment of 508.225 (and is no indication that he was ever evaluated its article 42.12 counterpart) under that section at ll(i) the trial enactment, § court lev- As the later would over 56 el.” But pursu- any evaluated ride implied prohibition found in ant to an order panel, § so the 508.225.
52. Dissent at 929 n. 14. at Dissent 929 n. 14. Treatment, 58. Council on Sex Offender
53. Tex. Code Rules Crim. Proc. 9A(a)(2)(B). Regulations Relating to Council on Sex Treatment, 22 Tex. Admin. Code Offender § Id., 9A(b), (c). 810.68(1), also, (2006). p. See 810.64(d)(20), p. (regarding pos- children, Indeed, sibility supervised notes, visits with Legisla- as the dissent elsewhere, history client who has of deviant sexual inter- ture has in the context of mandato- conditions, est in children should be restricted ry from hav- expressly limited a condition- ing to children access unless certain condi- of-probation provision’s person reach to a present). are tions actually placed probation who is for the *10 (citing sex offense. Dissent at 929-30 Tex. 2003, 353, 1, 13B(b)). Leg., §§ Code Crim. Proc. 59. Acts 78th ch. added). 56, 1,2. (emphasis 56. Dissent at 929 n. 14 Leg., §§ 60. Acts 76th ch. parole panel’s to the deci- may be relevant that Coleman Applicant contends are sion. offender conditions shows that sex these statutes. “reasonable” under not given notice that he would Applicant was of the a construction But Coleman was conditions; for sex offender be considered States Due Process Clause of United opportunity avail himself of the he did not statute, Constitution, not of the Texas subsequent during And respond. to holding about what was and Coleman’s evaluation, applicant was al- offender sex the releasee must be afforded to process respect to explanations to offer with lowed may conditions be sex offender before Applicant complains prior offenses. sex offender imposed, not about whether opportunity to given that he was may imposed at all. conditions be evaluation to Pierce’s sex offender respond im- fact, contemplated Coleman mandatory super- But even in the report. would of sex offender conditions position context, we have acknowl- where vision previ- if releasee had legitimate
be early in re- liberty interest edged offense or ously convicted of a sex been an exists, not held that we have lease justification for the con- particularized if op- and an to notice of inmate is entitled “appropriate at an developed ditions were evi- to all the bad respond portunity The to the releasee. hearing” afforded may have received parole panel dence (and the one remaining question concerning him.62 Coleman) pa- in is whether at issue deny relief. We pro- of due panel deprived applicant role an afford notice and by failing cess in PRICE, J., dissenting opinion filed a respond. opportunity to MEYERS, JOHNSON which HOLCOMB, JJ„ joined. Opportunity Respond Notice and C. COCHRAN, J., concurring filed a articulates Assuming Coleman WOMACK, J., joined. opinion which respect with the correct rule of law PRICE, J., dissenting opinion in filed a hear right to manner of process due some MEYERS, which JOHNSON process this due we conclude that ing, JJ„ HOLCOMB, joined. applicant’s case right was not violated of the of- was convicted notice provided in fact because he was building pur- of Even fense opportunity respond. an He was even- committing theft. early poses liberty exists when a interest revoked parole, but was context, tually re released process does not due release he panel found because the at which the convicted hearing a live quire his release enter- Rather, a condition of due violated present.61 be person safety zone. The ing a child that the convicted requires simply process alia, that the argues, inter timely notice in advance given person such a lacked the discretion of the panel’s consideration case, under Section in his condition opportuni given and that he be matter 508.225(a) Code.1 Texas Government that he feels any information ty to submit 508.225(a). provi- (Tex. This Geiken, parte 28 S.W.3d 61. Ex Tex. Gov’t Code sion reads: Crim.App.2000). (a) for which nature of the offense If the serving warrants a sentence an inmate id., passim. 62. See zone, a child the establishment *11 rejects argument Court this in a sin- The Court fails to picture. see whole gle, perfunctory sentence.2 I important believe that It is to construe all of the eondi- applicant’s argument correct, is tions-of-parole/mandatory howev- supervision pro- er, and therefore I respectfully dissent. in Chapter visions contained 508 of the in pari Government Code materia. More- In concluding child-safety-zone that a over, in view of Section 508.221’sreference condition imposed as condition provisions to Article 42.12’s governing con- applicant’s parole, the points Court community ditions of supervision, it is also language to broad in Section 508.221 of important to construe the Government the Government Code granting parole provisions pari Code pro- materia with panel authority “impose aas condi- visions in the Code Criminal Procedure parole tion of or mandatory supervision governing community conditions of super- any condition that a court may impose vision. begin Let us with the Government placed defendant on community supervi- Code. 42.12, sion under Article Code of Criminal 11(a)
Procedure-”3 Subsection of Ar- CHAPTER 508 42.12, turn, (albeit ticle grants wide unfettered) wholly discretion upon a trial Chapter 508 of the Government Code court to “impose any reasonable condition pertains generally parole and mandato- designed protect or ry restore the supervision in Subchapter Texas. F community, protect victim, or restore the designates mandatory conditions—those punish, rehabilitate, or or reform the de- panel must on certain fendant.”4 The Court deems the estab- offenders as a condition of their release on lishment of a child safety zone to be a mandatory or supervision. Among reasonable community condition of super- those conditions is that found one, vision for such applicant, as this who in Section 508.187.6 provision This re- has previously been quires convicted of indecent to impose as a condi- exposure, and it therefore holds that a tion of release the establishment of a child parole panel may also authorize it as a safety zone for “serving inmates a sen- parole, condition of consistent with Sec- tence” for certain enumerated offenses. tion 508.221 of the Government Code.5 Those enumerated offenses of- involve parole panel may center, establish a private youth child public swimming or applicable zone serving to an inmate pool, a sen- facility. or video arcade tence for an offense listed in Section ("Section Majority Opinion 2. See 42.12, at 922 3g(a)(l), Article Code of Criminal not, however, specifically 508.225 does Procedure, pre- judgment or for which a con- cluded the use of a child zone in other finding tains an affirmative under Section specifically [than the enumerated] circum- 42.12, 3g(a)(2), Article Code of Criminal stances.”) Procedure, by requiring aas condition of mandatory supervision or release to Id., citing that the inmate not: § Tex. Gov’t Code 508.221. (1) supervise participate any pro- or 11(a); gram Tex.Code Crim. Proc. participants recipi- includes as or Dawson, George E. Dix & persons Robert O. 43A years age ents who are 17
younger regularly provides and that athlet- Texas Practice: Criminal Practice and Proce- (2d ed.2001). ic, civic, activities; or cultural dure on, go in or or within a distance of, Majority opinion specified by panel premises at 922-23. where commonly gather, including children school, day-care facility, playground, public 6. Tex. Gov’t Code 508.187. *12 928 theft, express statu- none of these exploita- satisfies sexually a assaultive
fenses of tory criteria. nature, burglary of and do not include tive committing of building purposes a for nevertheless have parole panel Does a child-safety-zone con- a impose this was theft —the offense discretion because he this condition for, of, and “serving a sentence” victed was expo- for indecent prior has a conviction conditionally re- for which he was later enough that a It seems clear sure? Thus, parole panel appar- the leased. that condi- panel required impose is not impose safety a child ently required not tion, among not exposure indecent is since But, of parole. as a condition of his zone offenses Sec- expressly enumerated course, case is whether question this 508.187(a). event, any as noted tion In parole panel was authorized 508.187(a), earlier, it is the under Section a child zone as a condition “serving offense for which the releasee parole. applicant’s among those enu- sentence” must be merated, Expres- prior not some offense. 1999, Section Legislature enacted We must unius est exlusio alterius.8 sio provi- legislation This added 508.225.7 of plain indicium presume, absent some 508, Chapter G of Subchapter sion to intent, contrary that when legislative discretionary conditions of sets out which says thing, one it does Legislature mandatory supervision parole and something else.9 mean It may impose. authorizes parole panel equal apply maxim should This child-safety-zone condi- of a 508.225(a). By expressly force to Section releasees who upon non-sex-offender tion the circumstances which enumerating nature, of a violent serving are sentences or manda- “may” make designated by Section namely, offenses contingent upon impo- tory supervision of Article 42.12 of the Code 3g(a)(l) zone, Legisla- of a child sition Procedure, for which or offenses Criminal that such a presumably has indicated ture made of finding an affirmative has been imposed condition not otherwise deadly weapon the use or exhibition of course, where mandated (except, of This 3g(a)(2). Article Section 508.187).10 nothing I in the find Section (such for applicant, serving history sentence legislative Section is) Therefore, contrary.11 not- to the committing as building purposes for 56, 2, 1999, Singer, Sept. 2A Sutherland Leg., eff. Sambie 76th ch. 7. Acts on Statutes ed.2007); (7th 1, § 47:24 1999. statutory construction (2003), at 631— Statutes 116 67 Tex. Jur.3d holding that to "A canon of construction thing implies the ex express or include one other, alternative.” clusion of the or of the 508.255(c) ("This 10. See Tex. Gov’t Code (7th ed.1999). Dictionary 602 Black’s Law apply described to an inmate section does not statutory rule of construc "It is a well-known 508.187.”). by Section the ex State and elsewhere that tion in this person, press or enumeration of one mention through passed both Senate Bill 660 consequence tantamount to thing, or class is respective com- their Senate and House and parte Ex express exclusion of all others.” very little no amendment mittees with 851, McIver, (Tex.Crim.App. S.W.2d 856 586 analy- According various bill fanfare. 1979) rehear (Opinion on State’s motion for ses, certain con- purpose ”create[ ] was to its Roberts, S.W.2d 659 ing); v. 940 State parole, community supervision, ditions 1996). (Tex.Crim.App. mandatory supervision for certain violent Legislature did Apparently, the State, (Tex. offenders.” 965 S.W.2d 9. Williams v. discretionary imposition that the Singer & J.D. not believe Crim.App.1998); J. Norman *13 withstanding general authority granted a impose reasonable for trial court to a to a panel by child-safety-zone upon proba- Section 508.221 to condition impose any prior condition that could im- tioner has a be who conviction for inde- posed upon probationer exposure cent when reports under Article offense indi- 42.12,1 cate that parole panel may exposure would hold that a indecent involved Moreover, impose notes, child-safety-zone children.13 the Court Ar- condition ll(i) 42.12, upon an ticle Section a trial serving inmate authorizes sentence that 42.12, require court to a “sex does not fall under offender” “to sub- Article Section treatment, mit to 3g(a)(l), specialized supervision, or for which affirmative find- according rehabilitation to ing offense-spe- 42.12, was not made under Article practice cific standards of adopted by Section 3g(a)(2). Council on Sex Offender Treatment.”14 The Court reasons that provisions ARTICLE 42.12 these Article 42.12 would have authorized a trial if I Even were to entertain the Court’s placing court community this on assumption that Section general 508.221’s supervision impose child-safety-zone grant authority could trump what I take condition.15 I disagree. to be Section specific 508.225’s limitation authority, I would still hold that Chapter Like 508 of the Government authority Code, lacked to im- Article 42.12 specific provi- contains pose child-safety-zone upon condition sions that imposition address the of ehild- applicant. this Section 508.221 generally safety-zone 42.12, conditions. In Article authorizes a parole panel impose any 13B,16 Section Legislature provid- has condition that a trial court could impose ed for the imposition of a child- upon a defendant as a condition of safety-zone commu- condition of community super- nity supervision 13B(b) under Article 42.12. The vision. Section essentially mirrors points Court general language 508.187(a) in Article Section of the Government 42.12, 11(a) Section Code, for the proposition that requiring imposition of a child- a trial court is authorized to any safety-zone condition nearly for the identi- “reasonable condition” community 508.187(a) su- cal offenses for which Section pervision,12and concludes that it would be require would a parole panel to impose child-safety-zone of a already condition was practice adopted by standards of the Council by authorized statute. Treatment.”). "When what is ex- on Sex Offender It is not at all creative, pressed in a statute is and not in a clear to me that the would necessar- proceeding according to the ily course of the qualify aas "sex offender” under Tex.Code law, exclusive, common it is power 42.12, and the 9A(a)(2). § Crim. Proc. Article But only exists plainly granted.” did, to the extent even he if there is no indication that he Singer 47:23, Singer, & supra, § at 412. was ever “evaluated” under that section at level, the trial court and so I cannot conclude (i) 42.12, 11(a). imposing that Section 11 would authorize art. Tex.Code Crim. Proc. "treatment, offense-specific specialized super- vision, or rehabilitation” him as a con- Majority opinion at 922. community supervision. dition of Nor is it self-evident to me that of a child 14. Id. at 923. See Tex.Code Crim. Proc. art. "treatment, specialized zone constitutes 42.12, ll(i) ("A judge grants who communi- supervision, or rehabilitation.” ty supervision to a sex offender evaluated may require
under Section 9A the sex offend- 15. Id. at 922-23. community er as a condition supervision treatment, specialized supervision, submit to according offense-specific rehabilitation Tex.Code Crim. Proc. 13B. time, 13B(b), at in the same legisla- But Section acted the same such a condition. terms, only “to a defen- express applies its again, enumerating tive bill.18 Once community supervision for” placed dant this under which condition circumstances in- one of these enumerated offenses—not may imposed, community supervision building purposes of a cluding burglary Legislature has indicated *14 Had committing applicant of theft. this (except, not be otherwise of imposed community placed supervision been course, under mandated Section where a building, of of a trial offense 13B).19 applicant could not Because required, court could not have been under a subjected child-safety-zone have been a impose child-safety-zone Section 13B to community supervision condition of Again, expressio condition. unius est ex- 42.12, Article such a condition could not clusio alterius. a lawfully upon him as condi- imposed Chapter like 508 of the Also Government parole by tion of virtue of Section 508.221 Code, specific pro- 42.12 contains a Article of the Government Code. vision a trial au- governing when court is applicant’s parole should not have impose safety a child zone a thorized as of a condition of been revoked on the basis community supervision. condition of Sec- unlawfully imposed upon release that was provides a tion of Article 13D him. I dissent. respectfully “may” impose trial such a condition court community supervision if it ato “grants an in
defendant convicted of offense listed COCHRAN, J., concurring filed a judgment or for which the 3g(a)(l) Section WOMACK, J., joined. opinion which an affirmative under Sec- finding contains relief join I in the denial of to this are exactly tion These 3g(a)(2)[.]”17 habeas because he was corpus same circumstances under which a minimal due-process op- at given least a safety panel authorized to a child portunity appropriateness of to contest parole mandatory zone or as a condition (Sex ‘X’ indeed, imposing Of- “Special Condition supervision under Section 508.225— Condition)”1 upon him as condi- Section 13D and Section 508.225 were en- fender school, 42.12, 13D(a) day-care facility, playground, public art. Tex.Code Crim. Proc. center, private youth public swimming or reads: facility. pool, or arcade video (a) judge grants community supervi- If a a defendant convicted of an offense sion to 56, 1, Sept. Leg., ch. eff. 18. Acts 76th 3g(a)(l) or in Section for which listed 1, 1999. finding judgment contains affirmative 3g(a)(2), judge, if the under Section 19. See Tex.Code Proc. Crim. offense for which the defen- nature of the 13B(c) ("This apply does not section warrants the establish- dant is convicted 13B.”). by Section defendant described zone, ment of a child establish applicable defen- child zone copy Board of Pardons and 1. A of the Texas by requiring as a condition of commu- dant outlining “Special Paroles sheet Condition nity supervision defendant not: 'X'" is in TDCJ's amicus brief. included (1) any pro- supervise participate or (1) include Those conditions recipi- participants gram that includes as or pro- offender treatment enrollment in a sex years age persons who are 17 or ents (2) against entering any gram; prohibition provides regularly younger and that athlet- any sexually or business activities; business ic, civic, oriented cultural or entertainment”; provides on, “adult (2) go a distance in or within communicating of, prohibition against with the judge premises where specified by the going offense or near gather, including a victim of the sexual commonly children tion of his release on parole. might One board the imposition Special to consider reasonably question pa- the wisdom of the allegations Condition X. Those have never matter, role board’s decision in this but it accuracy, been in a court tested for their did not violate the Due Process Clause was not convicted of the the federal constitution. specific originally against offenses filed him. years
Seventeen before his current re- lease on applicant pled given applicant by The written notice guilty to B the Class misdemeanor of inde- division stated its reasons for exposure. cent Twenty-two years before considering of sex-offender his release on parole, applicant pled guilty conditions: to misdemeanor assault. The factual alle- *15 gations Attempted out in Arrest for Sexual Assaults original set police of- reports fense from Plead to Misdemeanor (Alleged- these remote misde- Assault female).2 meanor convictions parole ly are what led the rape tried to an adult white business, home, school; (4) person's prohibition against owning or a operating pho- or prohibition against participating any vol- tographic equipment approv- without written prior unteer activities ap- al; without the written (4) any prospective the notification of em- proval officer; parolee’s supervising of the (5) ployer parolee’s history; criminal a (5) prohibition against attending any a insti- (6) requirement; written curfew the sub- higher learning prior tution of parole without parolee’s person, mission to searches of the (6) approval; prohibition against board a car, home, time, any property any or other at purchase, possession, viewing any mag- or day night, parole or without a warrant azines, literature, depict or visual media that officer. (7) sexually explicit images; and the submis- polygraph sion to examinations. For those police report 2. The 1984 offense stated that whose years age, victims were under 17 applicant apartment sixty- entered the of a (1) prohibition conditions also include a year-old grabbed woman and he her and against any unsupervised any contact with legs. moved his hand in between her The person, child by telephone, under 17 or screamed, report appli- stated that she any electronic parolee means unless the away cant ran and hid under the bed in her (2) parent; the child’s prohibition against a police bedroom where the officer found him. forming any relationship (dating, marriage, appear might It would that there have been platonic) or any person who has chil- problems charges with this case as the were dren under approval by 17 without written simple Ap- reduced to misdemeanor assault. officer; (3) parolee’s supervising prohi- a plicant gave psychologist the sex offender against participating bition attending any or following explanation of that event: "When I civic, athletic, program or par- cultural if the 18-years-old, was I was drunk and I intended 17; ticipants (4) include children under first, they got to break a into house. At me "in, on, prohibition against going a or within assault, dropped attempt- for sexual but it to specified by a distance policy board of a happened lady ed. What was the in the house premise gather, where commonly children in- screaming started when she saw me. She school, cluding day facility, a play- care lady was an older and there was no sex.” center, ground, public private youth public or psychologist When the asked him whether he swimming pool, facility.” or video arcade attempted engage activity had to in sexual parole Additional conditions that a officer woman, said, applicant with the "I don’t discretion, (1) may, in his include a so; psychologist think I drunk.” The prohibition against leaving approved applicant concluded that was in need of sexu- county (2) permission; pro- without written a treatment, al-offense-specific part because against owning operating hibition comput- or authorization, accept responsibility equipment he "does not for the at- er without written assault, tempted deny given, but if such sexual and he did not authorization is submission (he attempted rape to a equipment warrantless search of all that he to the adult female such time, any day night, by any reported being "at TDCJ unable to recall due to alco- official”; hol).” lawor enforcement zone, X, child-safety including a dition Indecency With Child- Arrest him. (Alleged- [sic] Plead to Public Lewdness were 17 penis persons who
ly exposed sex- and a half after these A month younger public park. at a years age imposed, appli- conditions were offender urinating).3 to have been claims Offender that he candidly told his officer cant prior Awaiting Offender assessment Sex going to his father’s home had been every to release from TDCJ-ID. afternoon take a shower because house” where he lived did “sponsor that he could submit Applicant was told Unfortunately, applicant’s have hot water. and other documenta- a written statement feet of is located within 500 father’s house why the thirty days explain within tion facility.4 why appli- That was a child-care not be im- conditions should sex-offender family’s of his house cant had to move out He did not do so. posed. Thus, it was un- “sponsor house.” into then ordered that submit board knew that was disputed by psycholo- evaluation to sex-offender home, father’s even verboten visit his so, explained and he gist. He did Although applicant take hot shower. underlying the two of the events version job, had *16 successfully at a full-time worked convictions. The previous misdemeanor alcohol, doing drugs avoided and and was that all of the facts psychologist assumed parole re- supervision, his was well reports original police the offense within voked, prison. he was returned to and true, that and therefore concluded were notes, a convic- correctly the Court As to in denial of his likelihood applicant was B of inde- tion for the Class misdemeanor The psy- future sexual offenses. commit because exposure cent is a “sex” offense stated, chologist’s report (1) Penal 21 of the Chapter it is listed reported being the fact that he Based on Offenses,” and it Code entitled “Sexual in fact unable to recall whether he did the gratify involves an intent “to arouse female, adult attempt rape to A seventeen- sexual desire” of someone. intentionally exposing his that he denied Exposure for Indecent year-old conviction children, specific issue to the penis danger- might appear not to be the sort also recom- polygraph examination is Legislature sex crime that the Texas ous in [applicant’s] to assist mended order stringent it enacted the had in mind when planning. treatment and treatment registration sex-offender statutes, a literal it does fit within but appli- not reveal whether The record does application of the law. copy given psycholo- cant was ever Nonetheless, wisely Parole Division Applicant given was not gist’s report. not and did erred on the side of discretion to be heard before opportunity second X Special Condition automatically impose impose Special to Con- panel voted parole children intentionally exposing himself to the report, three According the 1989 offense to applicant girls young boy saw young anyone and a else. yard unzip up walk to them in front applicant that pants. The children said his uncle, superin- Applicant's a retired school penis, in his pulled his moved it around out tendent, officer told hand, said, look, girl.” “Hey, The re- 5:30 and father's home between went to his applicant was sponding officer said that everyone evening. He said 6:30 each Applicant told the sex- at the time. drunk left the child-care except the custodian had taking a leak in psychologist, "I was offender facility by then. They there were kids. an area where He denied dropped public it to lewdness.” Instead, applicant.5 by every him one of its intrusive condi- provided to abide with advance notice of its for con- reasons Taking tions and hot show- prohibitions. sidering imposition of the sex-offender home, at father’s which happened ers special an opportunity conditions and facility, to be located near a child-care provide written why documentation as to not the sort violation would neces- those conditions should not imposed. It sarily returning parolee call for to a gave also him an opportunity explain, However, high-cost prison.7 interview, during personal board’s action was authorized law. I psychologist why board’s forensic those agree therefore that applicant has not conditions should not be imposed. Appli- proven that he is entitled to relief on his cant did not any have further recourse or claim. forum in dispute psycholo- which to (if
gist’s report given he was even a copy report),
of that but at least he had had small,
some informal opportunity pres-
ent story.6 his side of the Special
Once Condition X imposed,
it is not surprising that
fail
applicant would
previously
Because
had been
society by
con
tute a
threat
reason of his lack of
crime, although
victed of “a” sex
“re
sexual control.”