MARK ANTHONY PETERSIMES, Appellant v. THE STATE OF TEXAS, Appellee
AFFIRM as MODIFIED and Opinion Filed July 19, 2011
Court of Appeals
Fifth District of Texas at Dallas
MARK ANTHONY PETERSIMES, Appellant
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 7
Dallas County, Texas
Trial Court Cause No. F06-22392-RKY
Before Justices Murphy, Fillmore, and Myers
Opinion By Justice Murphy
Mark Anthony Petersimes was charged by indictment with violating certain requirements of his civil commitment as a sexually violent predator. See Tex. Health & Safety Code Ann. § 841.085(a) (West 2010). After the trial court denied his motion to quash the indictment, Petersimes pleaded guilty and was sentenced to twenty years' imprisonment. In eight points of error, Petersimes contends the trial court erred in denying his motion to quash. In an additional point of error, he asserts the trial court's judgment should be reformed to reflect the offense for which he was convicted, his plea to the enhancement paragraph, and the trial court's finding on the enhancement. We modify the judgment and affirm the trial court's judgment as modified.
Petersimes was convicted of aggravated sexual assault of a child and sentenced to twelve years in prison. In 2002, near the end of his twelve-year sentence, the State filed a petition for civil commitment under the Civil Commitment of Sexually Violent Predators Act (the Act). See Tex. Health & Safety Code Ann. §§ 841.001-.150 (West 2010). See Footnote 1 The Act provides for the involuntary civil commitment, by means of outpatient treatment and supervision, of a repeat sexual offender who is found to be a sexually violent predator. Id. §§ 841.003(a), 841.081(a).
In accordance with the Act, the petition to commit Petersimes was filed in Montgomery County, Texas. Id. § 841.041(a) (petition alleging predator status to be filed in Montgomery County district court but not family district court); In re Commitment of Polk, 187 S.W.3d 550, 553 (Tex. App.-Beaumont 2006, no pet.) (venue for sexually violent predator petitions fixed in Montgomery County). After a jury determined Petersimes was a sexually violent predator as defined by the Act, the trial court signed its judgment and order of civil commitment on November 14, 2002. See Tex. Health & Safety Code Ann. § 841.003(a). Pursuant to the order, Petersimes was civilly committed for outpatient treatment and supervision coordinated by a case manager upon his release from prison. See id. § 841.081(a).
The commitment order required Petersimes to reside in Travis County and also subjected him to numerous conditions and restrictions. See id. § 841.082(a). The order further notified Petersimes that “if [he] violates a commitment requirement under Health & Safety Code § 841.082 or of this order, [he] may be charged with a felony of the third degree, which may be enhanced to a more severe punishment.” See id. § 841.085(a), (b). Petersimes appealed the commitment order, raising numerous constitutional challenges to the Act, and the order was affirmed. See In re Commitment of Petersimes, 122 S.W.3d 370, 372-73 (Tex. App.-Beaumont 2003, pet. denied). When the order became final on March 12, 2004, the Montgomery County district court transferred jurisdiction of Petersimes's case to Travis County.
The commitment order required Petersimes's case manager to provide a biennial examination report to the court in preparation for the court's review of Petersimes's status as a sexually violent predator. See Tex. Health & Safety Code Ann. § 841.101(b). The statute provides that upon receipt of the report, the “judge shall conduct a biennial review of the status of the committed person.” Id. § 841.102. The record reflects the Montgomery County district court conducted two biennial reviews, both of which continued Petersimes's civil commitment. The biennial review orders, signed on May 10, 2005 and May 11, 2007, included a finding that Petersimes was incarcerated for thirty months for violating a requirement of his civil commitment. The review orders also reflected the trial court's finding that the terms of Petersimes's civil commitment should be modified to require Petersimes to reside in a facility operated by the Texas Department of Criminal Justice in Dallas County upon his release from prison. On June 20, 2007, the trial court signed an amended biennial review order, deleting reference to Petersimes's incarceration and finding he was “likely to be an absconder at this time.” The amended review order further required Petersimes to live in a halfway house in Dallas County. On January 13, 2006, Petersimes signed the treatment requirements for the Wayback House as part of his participation in the outpatient sex offender treatment program. The Wayback House is a halfway house located in Dallas, Texas. See Jones v. State, 333 S.W.3d 615, 618 n.1 (Tex. App.-Dallas 2009, pet. ref'd).
In July 2006, a Dallas County grand jury indicted Petersimes for violating the terms of his civil commitment. See Tex. Health & Safety Code Ann. § 841.085. Specifically, the indictment alleged Petersimes violated the commitment order in March 2006 by failing to submit to tracking by GPS electronic monitor and by changing residence without prior authorization. Petersimes filed a motion to quash the indictment, arguing the trial court did not have jurisdiction over the matter. He also asserted the indictment should be quashed because the Act constituted an impermissible ex post facto law and, as applied to him, violated the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments of the United States Constitution, as well as Article I, sections 3, 9, 10, 14, 15-a, and 16 of the Texas Constitution. After hearing argument, the trial court denied the motion. Thereafter, Petersimes entered into a plea agreement with the State and pleaded guilty to violating his civil commitment order. See Footnote 2 He also pleaded true to an enhancement paragraph, and the trial court sentenced him to twenty years' imprisonment.
In eight points of error, Petersimes contends the trial court erred in denying his motion to quash the indictment, challenging the jurisdiction of the trial court as well as the constitutionality of the Act. The sufficiency of a charging instrument presents a question of law. Smith v. State, 309 S.W.3d 10, 13 (Tex. Crim. App. 2010). Accordingly, we review de novo a trial court's ruling on a motion to quash a charging instrument. See id. at 14; State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004).
A. Jurisdictional Challenge
In his first point of error, Petersimes challenges the trial court's denial of his motion to quash the indictment on jurisdictional grounds. He contends the commitment order transferred exclusive jurisdiction of his civil commitment proceedings to Travis County. Because neither biennial review order “altered the venue from Travis County,” he maintains the Dallas County trial court lacked subject matter jurisdiction over his case.
Petersimes relies on the 1999 version of the Act, which was the version in effect at the time his civil commitment order was entered. At that time, the Act required the Montgomery County trial judge to “transfer jurisdiction of the case to a district court, other than a family district court, having jurisdiction in the county in which the defendant is residing” immediately after the person's commitment. Act of May 30, 1999, 76th Leg., R.S., ch. 1188, § 4.01, 1999 Tex. Gen. Laws 4122, 4148 (current version at Tex. Health & Safety Code Ann. § 841.082(d)); see also Tex. Health & Safety Code Ann. § 841.041(a) (petition alleging predator status to be filed in Montgomery County district court). The commitment order in this case required Petersimes to reside in Travis County. As reflected in the order, the Montgomery County district court complied with this provision by transferring Petersimes's case to a Travis County district court.
In 2003, the legislature amended the provision, in part, to read:
Immediately after the case becomes final for purposes of appeal, the judge shall transfer jurisdiction of the case to a district court, other than a family district court, having jurisdiction in the county in which the person is residing, except that the judge retains jurisdiction of the case with respect to a civil commitment proceeding conducted under Subchapters F and G.
Act of May 28, 2003, 78th Leg., R.S., ch. 347, § 24, 2003 Tex. Gen. Laws 1505, 1517 (current version at Tex. Health & Safety Code Ann. § 841.082(d)). See Footnote 3 Subchapters F and G of the Act govern commitment review and petitions for release, respectively. See Tex. Health & Safety Code Ann. §§ 841.101-.103 (Subchapter F), 841.121-.124 (Subchapter G). In 2005, the legislature again amended the Act's post-commitment jurisdiction provision to read: “The court retains jurisdiction of the case with respect to a civil commitment proceeding conducted under Subchapters F and G.” Act of May 19, 2005, 79th Leg., R.S., ch. 849, § 3, 2005 Tex. Gen. Laws 2890, 2892 (current version at Tex. Health & Safety Code Ann. § 841.082(d)). The amendment became effective on September 1, 2005 and remains unchanged. See Tex. Health & Safety Code Ann. § 841.082(d).
In Jones v. State, this Court considered the effect of the 2005 amendment on the judge's obligation to transfer jurisdiction of that case. Jones, 333 S.W.3d at 619. The 2003 amendment was the version in effect at the time of Jones's civil commitment, and we observed that “this provision required the Montgomery County district court to transfer jurisdiction to a district court in Dallas County [where Jones resided] when the case had become final” for appeal purposes. Id. at 618-19. Looking then to the language of the 2005 amendment, we noted that if applicable, this “sweeping” provision “removed the requirement of any transfer of jurisdiction in cases both going forward and retroactively.” Id. at 619. In other words, the court that civilly committed a person would retain jurisdiction in the case instead of transferring it to a district court where the person lived. Id. We explained, however, that the court's retention of jurisdiction was “only civil jurisdiction over subsequent matters relating to the commitment process itself,” and “potential criminal proceedings that adjudge violations of the terms of the commitment” would be governed by the rules of general jurisdiction. Id.
To determine whether the 2005 amendment applied to the defendant in Jones, we considered the amendment's savings clause, which provided:
The change in law made by this Act applies only to an individual who on or after September 1, 2005,  is serving a sentence in the Texas Department of Criminal Justice or  is committed to the Texas Department of Mental Health and Mental Retardation for an offense committed before, on, or after the effective date of this Act.
Act of May 19, 2005, 79th Leg., R.S., ch. 849, § 9, 2005 Tex. Gen. Laws 2890, 2893; see also Jones, 333 S.W.3d at 619. We concluded the 2005 legislative amendment applied to Jones because “on or after September 1, 2005, Jones was committed to the Texas Department of Mental Health and Mental Retardation for an offense.” Jones, 333 S.W.3d at 619.
Petersimes asserted at oral argument that Jones is distinguishable from this case because here, there is a specific delegation of jurisdiction. Whereas in Jones, the committing court did not transfer jurisdiction to another district court. See id. at 619 & n.4. In Petersimes's brief, he points out that the Montgomery County district court specifically transferred jurisdiction to Travis County and claims that because there was no subsequent order transferring jurisdiction to Dallas County, jurisdiction of his commitment proceedings remains in Travis County. If the 2005 change in the law is applicable, however, the judge's mandate to transfer jurisdiction, both going forward and retroactively, is removed. See id. at 619.
In support of his motion to quash, Petersimes attached the 2005 and 2007 biennial review orders, as well as his admitting documents to the Wayback House. According to the May 2005 biennial review order, Petersimes was incarcerated for thirty months, and the order's modified commitment requirements stated that upon his release, he was to reside in a facility operated by the TDCJ in Dallas County. The documents for the Wayback House show Petersimes was not admitted for treatment until January 13, 2006. Thus, the record shows Petersimes was “serving a sentence in the [TDCJ]” on the effective date of the 2005 amendment. We therefore conclude the 2005 amendment applies to Petersimes and, under Jones, no order transferring jurisdiction to Dallas County was required and the rules of general jurisdiction govern his criminal proceeding. Id. Accordingly, under the rules of general jurisdiction, the trial court had jurisdiction to proceed on the criminal charge related to Petersimes's violation of his civil commitment order, a third-degree felony. See Tex. Code Crim. Proc. Ann. art. 4.05 (West 2005) (district courts and criminal district courts have original jurisdiction in criminal cases of grade felony); id. art. 13.18 (venue proper in county in which offense committed). The trial court therefore properly denied Petersimes's motion to quash the indictment on jurisdictional grounds. We overrule his first point of error.
B. Constitutional Challenges
In points of error two through eight, Petersimes challenges the trial court's denial of his motion to quash the indictment on constitutional grounds. Specifically, he contends the Act under which he was indicted is unconstitutional because it is punitive and is therefore an ex post facto law and violates double jeopardy prohibitions (Point of Error No. 2), violates Texas's separation of powers provisions (Point of Error No. 3), is vague and overbroad (Point of Error No. 4), violates due process by relying on uncertain and ill-fitted science (Point of Error No. 5), violates the protections against self-incrimination (Point of Error No. 6), and violates the protections against cruel and unusual punishment (Point of Error No. 7). He also claims he has been charged with two criminal offenses for the same conduct in violation of his double jeopardy protections (Point of Error No. 8). In analyzing the constitutionality of a statute, we begin with the presumption that the statute is valid and the legislature intended to comply with the United States and Texas Constitutions. See Barshop v. Medina Cnty. Underground Water Conservation Dist., 925 S.W.2d 618, 629 (Tex. 1996); Render v. State, 316 S.W.3d 846, 856 (Tex. App.-Dallas 2010, pet. ref'd), cert. denied, 131 S. Ct. 1533 (2011). If possible, we “interpret legislative enactments in a manner to avoid constitutional infirmities.” Barshop, 925 S.W.2d at 629. The party challenging the constitutionality of a statute bears the burden of demonstrating it fails to meet constitutional requirements. Walker v. Gutierrez, 111 S.W.3d 56, 66 (Tex. 2003); Render, 316 S.W.3d at 856.
The party asserting a facial challenge to a statute must also have standing. See State ex rel. Lykos v. Fine, 330 S.W.3d 904, 909-10 (Tex. Crim. App. 2011); Santikos v. State, 836 S.W.2d 631, 633 (Tex. Crim. App. 1992) (op. on reh'g). A facial challenge to a statute is the most difficult challenge to mount successfully because the challenger must show that no set of circumstances exists under which the statute will be valid. See Santikos, 836 S.W.2d at 633 (citing United States v. Salerno, 481 U.S. 739, 745 (1987)); see also Fine, 330 S.W.3d at 909 & n.13. Because a statute may be valid as applied to one set of facts and invalid as applied to another, “it is incumbent upon [Petersimes] to show that in its operation the statute is unconstitutional as to him in his situation; that it may be unconstitutional as to others is not sufficient.” Parent v. State, 621 S.W.2d 796, 797 (Tex. Crim. App. [Panel Op.] 1981); Santikos, 836 S.W.2d at 633. Thus, to have standing for a facial challenge, Petersimes first must show that he was convicted or charged under that portion of the statute he questions. See Fine, 330 S.W.3d at 909; Santikos, 836 S.W.2d at 633 (challenger must show statute was unconstitutional as applied to him) (citing Cnty. Court of Ulster Cnty., N.Y. v. Allen, 442 U.S. 140, 155 (1979) (“As a general rule, if there is no constitutional defect in the application of the statute to a litigant, he does not have standing to argue that it would be unconstitutional if applied to third parties in hypothetical situations.”)). See Footnote 4
Petersimes argues in his second point of error that the trial court should have quashed the indictment because the Act is punitive in nature and therefore is an ex post facto law and violates the prohibition against double jeopardy. He argues this is the Act's “most serious constitutional flaw.” His argument that the Act is punitive has been decided adversely to Petersimes by the Texas Supreme Court. See In re Commitment of Fisher, 164 S.W.3d 637, 645-53 (Tex. 2005). Additionally, Petersimes's previous challenge to the constitutionality of the Act on the basis it is punitive and violates basic constitutional safeguards was rejected. See Petersimes, 122 S.W.3d at 372-73. Similar challenges have been rejected repeatedly. See Footnote 5
In In re Commitment of Fisher, the Texas Supreme Court performed a comprehensive examination of the Act and concluded it is civil, not punitive. Fisher, 164 S.W.3d at 645-53. In reaching that conclusion, the Court followed a two-step analysis. Id. The Court first considered the intent of the legislature in passing the Act, which was “public safety and treatment-not punishment” and concluded the legislature unquestionably “gave the Act a civil edifice.” Id. at 646-47 (citing Tex. Health & Safety Code Ann. § 841.001 (legislative finding that “a civil commitment procedure for the long-term supervision and treatment of sexually violent predators is necessary and in the interest of the state”)). The Court then analyzed the Act's purposes and effects pursuant to the factors set forth by the United States Supreme Court in Kennedy v. Mendoza- Martinez, 372 U.S. 144, 168-69 (1963). See Footnote 6 Fisher, 164 S.W.3d at 647-53. The Court observed that although the Act imposed a third-degree felony for the sexually violent predator's violation of a commitment requirement, “[t]his criminal penalty is separate from the initial commitment proceedings.” Id. at 652-53 n.13 (citing Smith v. Doe, 538 U.S. 84, 101-02 (2003) (noting that “[a] sex offender who fails to comply with the reporting requirement may be subjected to a criminal prosecution for that failure, but any prosecution is a proceeding separate from the individual's original offense”)). The Court concluded “the criminal penalties attaching to a violation of a commitment requirement, when considered in relation to the statutory purpose and alongside the other Kennedy factors, do not make the commitment scheme punitive.” Id. at 653.
Although Petersimes did not acknowledge Fisher's holding in his brief, he maintained at oral argument that the analysis in Fisher should be re-examined. As an intermediate court of appeals, however, we are bound to follow Fisher unless and until the Texas Supreme Court instructs us otherwise. See Lubbock Cnty., Tex. v. Trammell's Lubbock Bail Bonds, 80 S.W.3d 580, 585 (Tex. 2002) (“It is not the function of a court of appeals to abrogate or modify established precedent.”); Diggs v. Bales, 667 S.W.3d 916, 918 (Tex. App.-Dallas 1984, writ ref'd n.r.e.). Following this precedent as we must, we conclude the Act is not a punitive statute. See Fisher, 164 S.W.3d at 653. We conclude the trial court properly denied the motion to quash the indictment on this ground and overrule Petersimes's second point of error.
Separation of Powers Challenge
Petersimes next attacks the constitutionality of the Act on the theory that it violates the Texas Constitution's separation of powers provisions. See Tex. Const. art. II, § 1; see also id. art. III, § 1. Specifically, he contends the trial court erred by denying his motion to quash because section 841.085 of the Act, when applied in conjunction with section 841.082(a), violates the separation of powers doctrine because it “allow[s] trial judges to impose the requirements of supervision,” delegating the legislature's authority to the trial judge to create a felony offense for violation of the commitment order. Section 841.082(a) governs commitment requirements and requires the trial judge to impose on the sexually violent predator “requirements necessary to ensure the person's compliance with treatment and supervision and to protect the community.” See Tex. Health & Safety Code Ann. § 841.082(a) (amended 2011). The legislature listed several requirements to be included in the commitment order. Id. § 841.082(a)(1)-(8). See Footnote 7 The legislature also included an additional provision permitting the trial judge to impose “any other requirements determined necessary.” Id. § 841.082(a)(9). Section 841.082(a)'s requirements, including those imposed under subsection (a)(9), are set out in the commitment order, giving the person specific notice of what is required. See Mullens, 92 S.W.3d at 888. Under section 841.085, the person commits a third-degree felony for violating any of the commitment requirements. Tex. Health & Safety Code Ann. § 841.085(a), (b).
Although Petersimes appears to complain about a “delegation of authority” under section 841.082(a)(9), Petersimes was not charged with violating a requirement under that subsection. Rather, he was charged with violating his civil commitment order by failing to submit to GPS tracking and by changing his address without permission. See id. § 841.082(a)(5), (6). Therefore, because Petersimes cannot show he was charged with violating a term of the commitment order imposed under section 841.082(a)(9), he does not have standing to mount this constitutional challenge. See Fine, 330 S.W.3d at 909-10; see also Cnty. Court of Ulster Cnty., 442 U.S. at 154-55 (“A party has standing to challenge the constitutionality of a statute only insofar as it has an adverse impact on his own rights.”); cf. Tex. Workers' Comp. Ins. Fund v. Mandlbauer, 988 S.W.2d 750, 752 (Tex. 1999) (per curiam) (“appealing parties may not complain of errors that do not injuriously affect them or that merely affect the rights of others”). Accordingly, we conclude the trial court did not err in denying the motion to quash on this ground. We overrule Petersimes's third point of error.
Vagueness and Overbreadth Challenge
In his fourth point of error, Petersimes argues the trial court erred in denying his motion to quash because the Act is unconstitutionally vague and overbroad, both facially and as applied. He contends that section 841.085 of the Act, when taken together with the requirements of section 841.082(a), “criminalizes unknown conduct” and subjects a defendant to an “unspecified enhancement if convicted for violating a term of supervision.”
Petersimes's facial challenge appears to focus generally on section 841.082(a), which lists the specific commitment requirements the trial judge shall impose on the person. Yet he does not identify a single term in the statute (or commitment order) that he contends is vague or overbroad. Rather, he asserts “a statute must give fair notice of what conduct may be punished and must not invite arbitray [sic], capricious, or discriminatory enforcement.”
Courts have addressed similar challenges to the Act and have determined the Act is not unconstitutionally vague or overbroad. See Fisher, 164 S.W.3d at 654-56; Green v. State, 219 S.W.3d 84, 88-91 (Tex. App.-Houston [1st Dist.] 2006, no pet.); Petersimes, 122 S.W.3d at 372; Shaw, 117 S.W.3d at 524-25; Browning, 113 S.W.3d at 864; In re Commitment of Morales, 98 S.W.3d 288, 291 (Tex. App.-Beaumont 2003, pet. denied) (per curiam); Beasley, 95 S.W.3d at 609; Mullens, 92 S.W.3d at 888.
In Fisher specifically, the Texas Supreme Court stated the Act is not unconstitutionally vague just because it “gives the trial court leeway to fashion restrictions tailored to the particular [sexually violent predator] facing commitment.” Fisher, 164 S.W.3d at 655. As noted in Mullens, the express terms of section 841.082(a) are set forth in the commitment order, giving the person specific notice of what conduct is punishable. Mullens, 92 S.W.3d at 888; see also Browning, 113 S.W.3d at 865 n.12. “Thus, even though the Act permits some discretion in tailoring a commitment order for the individual predator, the Act is not vague in its specific requirements.” Green, 219 S.W.3d at 90. Following this rationale, we conclude section 841.082(a) of the Act is not unconstitutionally vague or overbroad.
Petersimes also appears to raise a facial and as-applied challenge to section 841.085, arguing it requires a trial judge to “mislead” defendants, including him, because it notifies them they are subject to an “unspecified enhancement” if convicted for violating a commitment requirement. This argument has no merit. Section 841.085 does not speak to an “unspecified enhancement”; rather, the section states that a person faces a criminal penalty for violating a commitment requirement. See Tex. Health & Safety Code Ann. § 841.085. Nor does this case involve an “unspecified enhancement.” Here, the record clearly shows the State sought to enhance Petersimes's punishment based on his 2004 conviction for violating the terms of his civil commitment order while residing in Travis County and a previous conviction for attempted rape in North Carolina. We therefore reject Petersimes's contention the Act is vague or overbroad on this basis. Cf. Fine, 330 S.W.3d at 910 (litigant raising “as applied” challenge “concedes the general constitutionality of the statute, but asserts that the statute is unconstitutional as applied to his particular facts and circumstances”).
We conclude the trial court properly denied Petersimes's motion to quash the indictment based on grounds of vagueness and overbreadth. We overrule his fourth point of error.
Reliance on “Uncertain and Ill-Fitted Science”
Petersimes attacks the constitutionality of the Act on due process grounds in his fifth point of error. He specifically contends the trial court erred in denying his motion to quash the indictment because the “civil commitment process” violates due process and Article I, section 15-a of the Texas Constitution “by relying on highly uncertain, misapplied, and ill-fitted science.” The application of science, however, is for the purpose of assessing who would be subject to commitment as a sexually violent predator, initially and on a continuing basis. See Tex. Health & Safety Code Ann. §§ 841.023 (“Assessment for Behavioral Abnormality”), 841.101-.102 (biennial reviews). This case is not about the civil commitment process. Rather, the trial court was presented with a motion to quash an indictment charging Petersimes with violating certain of his commitment requirements. Because the question of whether Petersimes was subject to commitment was not part of the proceedings before the trial court, we conclude the trial court did not err when it denied Petersimes's motion to quash on this ground. We overrule his fifth point of error.
In his sixth point of error, Petersimes contends the trial court should have quashed the indictment because the Act violates his protection against self-incrimination. He claims the Act forces him to take lie detector tests, participate in mandatory counseling, and make statements concerning potentially criminal behavior. He maintains that under the Act, he is faced with “an unconstitutional ultimatum”-that is, if he refuses to take a polygraph exam, he is subject to a criminal penalty for violating his civil commitment, or if he takes the exam, he may be “confessing to crimes” in a forum, which can be used against him in the future.
Section 841.083(a) provides that a person's treatment plan “may include the monitoring of the person with a polygraph or plethysmograph.” Tex. Health & Safety Code Ann. § 841.083(a). This requirement was expressed in Petersimes's commitment order, as well as the treatment requirements he signed for the Wayback House. Petersimes was not charged, however, with refusing to submit to a polygraph examination. He therefore lacks standing to question the constitutionality of section 841.083(a). See Fine, 330 S.W.3d at 909-10. Accordingly, the trial court did not err in denying Petersimes's motion to quash on this ground. We overrule his sixth point of error.
Cruel and Unusual Punishment
In his seventh point of error, Petersimes claims the indictment should have been quashed because the criminal penalty of section 841.085 violates constitutional protections against cruel and unusual punishment. See U.S. Const. amend. VIII; Tex. Const. art. I, § 13. He raises both an as- applied and facial challenge to section 841.085.
As applied to him, Petersimes contends section 841.085's imposition of a third-degree felony, or enhanced third degree felony, is a “grossly disproportionate” sentence to the alleged crime committed and therefore violates constitutional prohibitions against cruel and unusual punishment. The State responds Petersimes had no right to appeal his twenty-year sentence. We agree with the State.
Petersimes pleaded guilty pursuant to a plea bargain after the trial court denied his motion to quash the indictment. The trial court imposed the sentence and signed the certification of Petersimes's right of appeal. In accordance with rule of appellate procedure 25.2(a)(2), the certification stated that this was “a plea-bargain case” but that Petersimes had the right to appeal matters “raised by written motion filed and ruled on before trial.” See Tex. R. App. P. 25.2(a)(2)(A). Thus, Petersimes had the right to appeal from the trial court's denial of his motion to quash the indictment.
Although Petersimes argues the trial court erred in denying his motion to quash because the Act's imposition of a third-degree penalty is unconstitutionally cruel and unusual as applied to him, his ultimate challenge is to the twenty-year sentence. Because a complaint about the sentence imposed is not one of the matters to which he had the right to appeal, we conclude we do not have jurisdiction to address this particular complaint. Id.; Chavez v. State, 183 S.W.3d 675, 680 (Tex. Crim. App. 2006) (explaining analysis court of appeals undertake in determining appellate rights of plea-bargaining defendants). Moreover, the punishment assessed in this case was within the applicable punishment range. As a general rule, punishment assessed within the statutory range for the offense is not unconstitutionally excessive, cruel, or unusual. Castaneda v. State, 135 S.W.3d 719, 723 (Tex. App.-Dallas 2003, no pet).
In his facial challenge, Petersimes maintains that because the actual effect of any violation of the statute, including technical violations, could constitute a potential penalty of life in prison, the Act is “globally cruel and unusual.” The Austin court of appeals addressed a similar challenge in Browning v. State, No. 03-03-00711-CR, 2004 WL 1685480 (Tex. App.-Austin July 29, 2004, no pet.) (mem. op., not designated for publication). In that case, the defendant moved to quash the indictment charging him with violating the terms of his civil commitment as a sexually violent predator. Id. at *1. After the trial court denied the motion, he appealed and argued section 841.085 violated the constitutional guarantee against cruel and unusual punishment because a prison term of two to ten years was disproportionate to the violation of a commitment requirement. Id. He asserted the range of punishment was “excessive, cruel, and unusual” and specifically claimed that “[n]o punishment that could be imposed under [the statute] would be constitutionally proportionate to the underlying conduct.” Id.
The Austin court noted in rejecting his facial challenge to section 841.085 that the appellant was required to show that no set of circumstances existed under which the statute will be valid. Id. (citing Salerno, 481 U.S. at 745; Santikos, 836 S.W.2d at 633). Here too, Petersimes's facial challenge to section 841.085 must fail because he has not shown that no set of circumstances exist under which the statute will be valid. Browning, 2004 WL 1685480, at *2. We conclude the trial court properly denied Petersimes's motion to quash on this ground. We overrule his seventh point of error.
Double Jeopardy Challenge
In his eighth point of error, Petersimes contends the indictment should have been quashed because he was placed in jeopardy twice for the same conduct. Specifically, he argues he was charged with two criminal offenses-failure to register as a sex offender under chapter 62 of the code of criminal procedure and violation of a commitment requirement under section 841.085-based on the same conduct of moving without notification. He maintains the Act and chapter 62 “create dual criminal liability for one action” and claims the “double charges take two bites at the apple” in violation of his constitutional protection against double jeopardy.
Petersimes bases his double jeopardy argument on both the Fifth Amendment of the United States Constitution and Article I, section 14 of the Texas Constitution. The Fifth Amendment's double jeopardy protection applies to the states through the Fourteenth Amendment. See Benton v. Maryland, 395 U.S. 784, 794 (1969). The Double Jeopardy Clause protects against a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction, and multiple punishments for the same offense. Bigon v. State, 252 S.W.3d 360, 369 (Tex. Crim. App. 2008).
Petersimes invokes double jeopardy protection based on being “charged with two criminal offenses for the same conduct.” When the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact which the other does not. See Blockburger v. United States, 284 U.S. 299, 304 (1932). To determine whether two crimes are the same for double jeopardy purposes, we focus on the elements alleged in the charging instruments. Bigon, 252 S.W.3d at 370.
Petersimes complains of being charged with two offenses-violating the terms of his civil commitment and failing to register as a sex offender. He was charged in separate indictments. The indictment for violating the terms of his civil commitment alleged two acts: failing to submit to GPS electronic monitoring and changing residence without authorization. The indictment for Petersimes's offense of failing to register as a sex offender does not appear in the record. The charge was identified in Petersimes's motion and discussed in the hearing on the motion to quash.
During the hearing on the motion to quash, Petersimes's counsel informed the trial court that the conduct under which Petersimes was indicted for failing to register was based on his leaving Texas and going to Colorado and “failing to inform either of those jurisdictions of his new residence as required.” He asserts this is the conduct that creates the double jeopardy problem because he was also indicted for violating his civil commitment when he changed his residence without permission.
To prove that Petersimes violated the terms of his civil commitment, the State was required to prove that Petersimes is a person who was adjudicated and civilly committed as a sexually violent predator. See Tex. Health & Safety Code Ann. § 841.085(a). A violation of the civil commitment order also depended on the specific requirements imposed by the trial court. In this instance, he was required to submit to GPS monitoring and obtain permission to change residences-not just to register with law enforcement personnel within seven days of changing his address. Failing to register as a sex offender is different from obtaining permission to move. Additionally, Petersimes was charged with two separate acts: failing to submit to GPS monitoring and failing to obtain permission to move. Accordingly, Petersimes has failed to satisfy the Blockburger “same elements” test or to establish punishment for only one act. See Footnote 8
We conclude the trial court properly denied Petersimes's motion to quash the indictment based on his double jeopardy challenge. We overrule his eighth point of error.
C. Reformation of the Judgment
In his ninth point of error, Petersimes asserts the trial court's judgment is inaccurate and should be reformed. Specifically, he contends the judgment reflects an incorrect statute and level of offense and does not reflect he pleaded true to one enhancement paragraph. We agree.
Under rule of appellate procedure 43.2, we have the authority to modify a trial court's judgment and affirm it as modified. Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993). We may do so when we have the necessary information and evidence. See Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.-Dallas 1991, pet. ref'd); Storr v. State, 126 S.W.3d 647, 654-55 (Tex. App.-Houston [14th Dist.] 2004, pet. ref'd).
Petersimes was charged with violating his civil commitment under section 841.085(a) of the health and safety code by failing to submit to GPS tracking and by changing his residence without authorization. An offense under this section is a third-degree felony. Tex. Health & Safety Code Ann. § 841.085(b). Yet the trial court's judgment recites Petersimes was convicted under section 62.10 of the “penal code.” See Footnote 9 It also recites he was convicted of a second-degree felony.
The record further shows the State sought to enhance Petersimes's punishment range with two prior felony convictions. At the plea hearing, Petersimes's counsel informed the trial court Petersimes pleaded true “on the enhancement paragraphs that have been submitted to the Court.” The plea agreement also shows Petersimes pleaded to true to at least one enhancement paragraph. The trial court's judgment, however, does not reflect Petersimes's plea of true to the enhancements nor does it reflect the trial court's finding on the enhancements.
In its brief, the State suggests there was a motion to dismiss one of the enhancements it sought to establish and points to the docket sheet, which states the “court ordered enhancement dismissal on state's motion.” Although the record does not include a motion to dismiss an enhancement paragraph, both sides agree Petersimes pleaded true to one enhancement paragraph. Therefore, we will accept this assertion as true. See Pitts v. State, 916 S.W.2d 507, 510 (Tex. Crim. App. 1996) (accepting as true factual assertions made by counsel which were not disputed by opposing counsel).
Finally, while the trial court did not make an express finding as to the enhancement paragraph, it is obvious from Petersimes's sentence that punishment for his third-degree felony was enhanced; the trial court assessed his punishment at twenty years' confinement, a range above the two to ten years for this offense without enhancement. Therefore, we will imply a finding of true to the enhancement paragraph. See Almand v. State, 536 S.W.2d 377, 379 (Tex. Crim. App. 1976); Garner v. State, 858 S.W.2d 656, 659-60 (Tex. App.-Fort Worth 1993, pet. ref'd).
On this record, we modify the trial court's judgment to reflect Petersimes was convicted under section 841.085 of the health and safety code, a third-degree offense. We also modify the trial court's judgment to reflect Petersimes pleaded true to one enhancement paragraph and the trial court's finding of true on the punishment enhancement. We sustain his ninth point of error.
We conclude the trial court properly denied Petersimes's motion to quash the indictment. We modify the trial court's judgment to reflect a conviction for the offense of violating the requirements imposed under Petersimes's civil commitment order pursuant to section 841.085 of the health and safety code. The degree of offense is modified to reflect the conviction to be a third- degree felony. Further, the plea to the first enhancement, as well as the trial court's finding on the first enhancement is modified to “True.” Accordingly, we affirm the trial court's judgment as modified.
Do Not Publish
Tex. R. App. P. 47
Footnote 1 The Act was amended during the 2011 regular legislative session to allow for the “creation of a state agency to perform the functions relating to the sex offender civil commitment program that are currently performed by the Council on Sex Offender Treatment.” Act of June 17, 2011, 82nd Leg., R.S., ch. 1201, §§ 3-20, 2011 Tex. Sess. Law. Serv. (West, Westlaw through June 2011 amendments).
Footnote 2 Petersimes also pleaded guilty for failing to register as a sex offender and agreed to a five-year sentence. Although he also appealed that conviction, Petersimes later filed a motion to withdraw the appeal, which a panel of this Court granted. Thus, the appeal of his conviction for failing to register as a sex offender was dismissed. See Petersimes v. State, No. 05-10-00228-CR, 2010 WL 3565812 (Tex. App.-Dallas Sept. 15, 2010, no pet.) (per curiam) (mem. op., not designated for publication).
Footnote 3 According to the savings clause, the 2003 amendment applied to “civil commitment proceedings initiated before, on, or after the effective date of this Act,” which was September 1, 2003. Act of May 28, 2003, 78th. Leg., R.S., ch. 347, § 32, 2003 Tex. Gen. Laws 1505, 1519. Because Petersimes's commitment proceedings concluded in November 2002, the 2003 amendment did not apply to Petersimes.
Footnote 4 A limited exception to this rule has been recognized for statutes that broadly prohibit speech protected by the First Amendment. Santikos, 936 S.W.2d at 633. The Act, however, does not fall within the First Amendment exception.
Footnote 5 See, e.g., In re Commitment of Miller, 262 S.W.3d 877, 882-87 (Tex. App.-Beaumont 2008, pet. denied), cert. denied, 130 S. Ct. 156 (2009); Adams v. State, 222 S.W.3d 37, 55-57 (Tex. App.-Austin 2007, pet. ref'd); In re Commitment of Shaw, 117 S.W.3d 520, 522-24 (Tex. App.-Beaumont 2003, pet. denied); In re Commitment of Browning, 113 S.W.3d 851, 858-62 (Tex. App.-Austin 2003, pet. denied); Beasley v. Molett, 95 S.W.3d 590, 607-08 (Tex. App.-Beaumont 2002, pet. denied); In re Commitment of Mullens, 92 S.W.3d 881, 883-84 (Tex. App.-Beaumont 2002, pet. denied).
Footnote 6 In Kennedy, the Supreme Court set forth seven factors to use in evaluating whether a statute is penal or regulatory in character: (1) whether the sanction involves an affirmative disability or restraint; (2) whether it has historically been regarded as a punishment; (3) whether it comes into play only on a finding of scienter; (4) whether its operation will promote the traditional aims of punishment-retribution and deterrence; (5) whether the behavior to which it applies is already a crime; (6) whether an alternative purpose to which it may rationally be connected is assignable for it; and (7) whether it appears excessive in relation to the alternative purpose assigned. Kennedy, 372 U.S. at 168-69. This list is not exhaustive, nor are the factors dispositive of the issue. United States v. Ward, 448 U.S. 242, 249 (1980).
Footnote 7 In the 2011 amendment, the Legislature removed subsection (a)(8)'s requirement that the person notify the case manager within 24 hours of any change in the person's status that affects proper treatment and supervision. See Act of June 17, 2011, 82nd Leg., R.S., ch. 1201, § 8, 2011 Tex. Sess. Law Serv. (West, Westlaw through June 2011 amendments).
Footnote 8 We recognize the Blockburger test is not the exclusive test for determining if two offenses are the same. See Bignon, 252 S.W.3d at 370 (discussing Ervin v. State, 991 S.W.2d 804, 810-11 (Tex. Crim. App. 1999)); Jenkins v. State, No. 05-10-00686-CR, 2011 WL 2420865, at *4 (Tex. App.-Dallas June 17, 2011, no pet. h.). As noted by the Texas Court of Criminal Appeals in Bignon, offenses may be the same for double jeopardy purposes even when their elements differ under Blockburger, if there are other indicia of legislative intent to treat the offenses as the same. Id. at 372. There is no indication in the legislative history that the offenses here should be treated the same.
Footnote 9 We note the correct statute for the offense of failing to comply with sex offender registration requirements is article 62.102 of the code of criminal procedure. See Tex. Code Crim. Proc. Ann. art. 62.102(a) (West 2006).