Brian K. Collins v. The State of Texas--Appeal from 396th District Court of Tarrant County

COURT OF APPEALS

SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 2-04-297-CR

BRIAN K. COLLINS APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY

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MEMORANDUM OPINION1

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In 1998, Appellant Brian K. Collins was convicted of indecency with a child by exposure.2 In 2004, Appellant was charged with failing to comply with sex offender requirements related to the underlying conviction.3 After being admonished at the hearing on the charge for failing to register as a sex offender, Appellant pled guilty pursuant to a plea bargain and was sentenced to two years in the Institutional Division of the Texas Department of Criminal Justice. The record reflects admonishments for a third-degree felony, and the judgment reflects a conviction and sentence for a third-degree felony. As the State and Appellant point out, the trial judge, the prosecutor, and the defense attorney all mistakenly believed that Appellant was required to register as a sex offender for life and had committed a third-degree felony by failing to register.4 Because indecency with a child by exposure is not a sexually violent offense,5 however, the period of registration is only ten years,6 and the failure to register as a sex offender after conviction for indecency with a child by exposure is a state jail felony, not a third-degree felony.7

The State and Appellant correctly agree that his conviction based on an involuntary plea and his void sentence should be reversed. We therefore reverse the trial court s judgment and remand this case to the trial court for a new trial.

LEE ANN DAUPHINOT

JUSTICE

PANEL B: DAUPHINOT, WALKER, and MCCOY, JJ.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: March 17, 2005

NOTES

1. See Tex. R. App. P. 47.4.

2. See Tex. Penal Code Ann. 21.11(a)(2) (Vernon 2003).

3. See Tex. Code Crim. Proc. Ann. art. 62.10(a) (Vernon Supp. 2004-05).

4. See id. arts. 62.10(b)(2), 62.12(a)(1).

5. Id. art. 62.01(6).

6. Id. art. 62.12(b)(2).

7. Id. art. 62.10(b)(1).