PD-1121-15 COURT OF CRIMINAL APPEALS Oral argument requested AUSTIN, TEXAS Transmitted 9/24/2015 4:49:58 PM Accepted 9/24/2015 5:02:01 PM ABEL ACOSTA PD-1121-15 CLERK

IN THE TEXAS COURT OF CRIMINAL APPEALS _________________________________________________

EX PARTE MICAH TUTTON APPELLANT _________________________________________________

FROM THE TENTH COURT OF APPEALS CAUSE No. 10-14-00360-CR

APPEAL FROM THE 40TH DISTRICT COURT OF ELLIS COUNTY, TEXAS, CAUSE NO. 34649CR _________________________________________________

APPELLANT’S PETITION FOR DISCRETIONARY REVIEW _________________________________________________

BRUCE ANTON SORRELS, UDASHEN & ANTON State Bar No. 01274700 2311 Cedar Springs, Suite 250 [email protected] Dallas, Texas 75201 214-468-8100 (office) BRETT ORDIWAY 214-468-8104 (fax) State Bar No. 24079086 [email protected] Counsel for Appellant

September 24, 2015 Grounds for Review I.! Whether an applicant-appellant must anticipate and counter the district court’s reasoning in re- jecting his application in order to preserve his complaint as to that reasoning for review. II.! Whether the court of appeals incorrectly conclud- ed that Tutton’s evidentiary support was not be- fore the district court.

Table of Contents Grounds for Review..................................................................................... 2! I.! Whether an applicant-appellant must anticipate and counter the district court’s reasoning in rejecting his application in order to preserve his complaint as to that reasoning for review. ....................... 2! II.! Whether the court of appeals incorrectly concluded that Tutton’s evidentiary support was not before the district court. .......................... 2! Table of Contents ........................................................................................ 3! Index of Authorities .................................................................................... 5! Identity of Parties and Counsel ................................................................. 6! Statement Regarding Oral Argument ....................................................... 7! Statement of the Case and Procedural History......................................... 8! Argument................................................................................................... 10!

I.! Background ................................................................................. 10!

II.! A habeas corpus applicant cannot be required to anticipate the district court’s reasoning in rejecting his application in order to preserve his claim for review ............................................................ 14!

III.! The court of appeals incorrectly concluded that the necessary evidentiary support was not before the district court ..................... 17!

IV.! Conclusion ............................................................................... 18! Prayer ........................................................................................................ 18! Certificate of Service ................................................................................. 20!

Certificate of Compliance ......................................................................... 20! Appendix .................................................................................................... 21!

Index of Authorities Cases Ex Parte Tutton, No. 10-14-00360-CR, 2015 WL 4384496 (Tex. App.— Waco 2015) ............................................................................. 9, 13, 14, 17 Henson v. State, 794 S.W.2d 385, 401 (Tex. App.—Dallas 1990, pet. ref’d) ....................................................................................................... 15 Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992) ............ 16 Resendez v. State, 306 S.W.3d 308, 318 (Tex. Crim. App. 2009) ............ 16 State v. Saavedra, 13-04-400-CR, 2005 WL 1714296 (Tex. App.—Corpus Christi 2005, no pet.) ............................................................................. 15 Turcar, LLC v. I.R.S., 451 F. App’x 509, 513 (6th Cir. 2011) ................. 15 United States v. White, 704 F. Supp. 90, 93 (E.D.N.C. 1989) ................. 15

Statutes TEX. CRIM. PROC. CODE § art. 62.102 .................................................... 8, 11

Other Authorities Tex. Att’y Gen. Op. GA-0772 (2010) ......................................................... 14

Rules TEX. R. APP. P. 33.1 ................................................................................... 16 37 TEX. ADMIN. CODE § 87.85(g) (2009) .................................................... 14 Identity of Parties and Counsel For Appellant Micah Tutton:

BRUCE ANTON Trial counsel of record SORRELS, UDASHEN & ANTON 2311 Cedar Springs, Suite 250 Dallas, Texas 75201

BRUCE ANTON BRETT ORDIWAY Appellate counsel of record SORRELS, UDASHEN & ANTON For Appellee the State of Texas:

CYNTHIA W. HELLSTERN Trial and appellate counsel of record ELLIS COUNTY DISTRICT ATTORNEY’S OFFICE 109 S. Jackson Waxahachie, Texas 75165 Trial court:

40TH JUDICIAL DISTRICT COURT OF ELLIS COUNTY, TEXAS THE HONORABLE BOB CARROLL PRESIDING Statement Regarding Oral Argument

The court of appeals in this case effectively held that a habeas corpus applicant must anticipate the district court’s reasoning in reject- ing his application in order to preserve his claim for review. This hold- ing is, of course, enormously impactful on the thousands of annual ha- beas applicants. Tutton respectfully requests this Court to grant oral argument so that this important issue can be fully considered.

Statement of the Case and Procedural History

On the advice of his attorney, Tutton pleaded guilty to failing to comply with the registration requirements of the Sex Offender Registra- tion Program. See TEX. CRIM. PROC. CODE § art. 62.102; (CR: 3). Only af- ter being sentenced to five years’ community supervision did Tutton learn he was never required to register. (CR: 28-29, 52).

Accordingly, Tutton filed an application for a writ of habeas cor- pus, pursuant to Article 11.072 of the Code of Criminal Procedure, in which he alleged that: (1) he was actually innocent, (2) his plea was in- voluntary, and (3) he received ineffective assistance of counsel because Slaton inadequately investigated the matter. (CR: 54). The State disa- greed. Tutton was required to register, the State contended, and the district court, following the State, rejected Tutton’s application. (CR: 64).

On appeal to the Tenth Court of Appeals, Tutton argued the distirct court was wrong. (Ap. Br. at 9). In an opinion released July 9, 2015, the court of appeals refused to consider the merits of Tutton’s ar- gument, though, because it concluded he failed to present to the district court both the legal arguments and evidence that prove he is entitled to relief. Ex Parte Tutton, No. 10-14-00360-CR, 2015 WL 4384496 (Tex. App.—Waco 2015). Because the court was wrong as to both, Tutton moved the court to rehear the case. The court denied Tutton’s motion on July 29, 2015. This petition now follows.

Argument I.! Background

In April 2004, Tutton—himself a juvenile—was placed on proba- tion in Ellis County for committing the offense of indecency with a child. Had he completed a treatment program, he would not have been re- quired to register as a sex offender, but approximately two years later the State filed a “Petition to Modify” in which it alleged that Tutton failed to do so. (CR: 82).

Almost immediately after the State filed that petition, however, a Johnson County court sentenced Tutton to the Texas Youth Commis- sion for committing a separate sexual assault. Ellis County thus filed a motion to nonsuit its petition. (CR: 99). And the Johnson County court “defer[red] deci[ding] on requiring registration… until [Tutton] com- pleted treatment… as a condition of probation or while committed to the Texas Youth Commission.”

On September 5, 2008, Tutton failed the Johnson County-ordered TYC treatment program. (CR: 63). TYC sent a letter to Ellis County stating that Tutton “w[ould] be required to register as a sex offender” as a result of the Johnson County offense. (CR: 63); see also (St. Br. at 9- 10). But the Johnson County court never then required as much.

In February 2010, the Ellis County grand jury nonetheless indict- ed Tutton for failing to comply with the registration requirements of the Sex Offender Registration Program. See TEX. CRIM. PROC. CODE § art. 62.102; (CR: 3). Specifically, for failing “to report a change in [his] sta- tus with respect to leaving employment.” (CR: 3). Tutton was con- fused—no court had ever required him to register. (CR: 39, 52). But be- cause Tutton’s appointed attorney, Charles Slaton, “advised [him] that [he] did not stand a chance in trial,” on June 11, 2010, Tutton agreed to plead guilty in exchange for a sentence of 730 days’ confinement in the state jail, a $1,000 fine, and five years’ community supervision. (CR: 28- 29, 52).

Since that time, however, Tutton’s belief was confirmed—he was in fact not required to register. Thus, on September 24, 2014, Tutton, represented by present counsel, filed an application for a writ of habeas corpus in which he alleged that: (1) he was actually innocent; (2) his plea was involuntary; and (3) he received ineffective assistance of coun- sel because Slaton inadequately investigated the matter. (CR: 54).

The State disagreed. Tutton was required to register, the State contended, as a result of the Johnson County offense, and thus all of his grounds were without merit. (CR: 56-58). But the State did not contend that the Johnson County court required Tutton to register. Instead, the State pointed to its own prosecutor’s affidavit, citing an administrative rule, claiming that, because Tutton failed the Johnson County-ordered treatment course, TYC itself had authority to require him to register. (CR: 60-63).

A mere four days later, the district court denied Tutton’s applica- tion for the reasons provided by the State. (CR: 64). The day after that, Tutton filed a “Supplemental Response and Unopposed Request for Re- hearing,” to which he attached several pieces of additional evidence. (CR: 65-107). The court explicitly “considered,” but denied, the response and request. (CR: 111).

On appeal to the Tenth Court of Appeals, Tutton argued the dis- trict court erred in finding that he was required to register as a sex of- fender as a result of his juvenile adjudication in Johnson County. (Ap. Br. at 9). Primarily because, even if TYC had required him to register, the administrative rule that theh State contended allowed it to do so was irreconcilably in conflict with the Code of Criminal Procedure, ren- dering it void. (Ap. Br. at 11). Thus, because TYC had no authority to require Tutton to register, he did not fail to comply with the concomi- tant requirements. (Ap. Br. at 18). Because he nonetheless pleaded guilty to as much on the advice of his counsel, Tutton (1) was actually innocent, (2) his plea was involuntary, and (3) he received ineffective assistance of counsel. (Ap. Br. at 18).

In response, the State offered nothing to rebut the merits of Tut- ton’s argument. It simply pasted its argument from the district court in- to its brief. Compare (St. Br. at 8-11) with (CR: 56-58). Instead, the State asked the court to ignore Tutton’s argument because Tutton “failed to present to the trial court the evidence–or the legal argu- ments—that he now claims shows he is entitled to relief.” (St. Br. at 6). Tutton filed a reply brief addressing each claim, but the court of appeals entirely ignored it and, following the State, refused to consider the mer- its of Tutton’s argument. Tutton, 2015 WL 4384496 at *3. Because the court was wrong—and in fact made an even greater error than the State urged—Tutton moved the court to rehear the case. The court de- nied that motion.

II.! A habeas corpus applicant cannot be required to anticipate the district court’s reasoning in rejecting his application in order to preserve his claim for review

In Tutton’s original application for a writ of habeas corpus he al- leged that, because he was not required to register as a sex offender: (1) he was actually innocent, (2) his plea was involuntary, and (3) he re- ceived ineffective assistance of counsel because his counsel inadequately investigated the matter. (CR: 39). On appeal, he argued just the same, pointing to his application. (Ap. Br. at 6-7, 10). And yet, in a single con- clusory sentence, followed by three sentences of boilerplate, the court of appeals rejected Tutton’s appeal because “[n]one of the arguments made by Tutton on appeal were made in his habeas-corpus application.” Tut- ton, 2015 WL 4384496 at *3.

Concededly, the statutory-construction question focused upon in Tutton’s brief was not discussed in his application for a writ of habeas corpus. Compare (Ap. Br. at 10-18) with (CR: 43-54). But the statutory- construction issue only arose once the State pointed to an Attorney General’s opinion in support of its argument, as it relied upon a provi- sion in the Administrative Code. See (CR: 57) (citing Tex. Att’y Gen. Op. GA-0772 (2010) (citing 37 TEX. ADMIN. CODE § 87.85(g) (2009))). Consid- ering the district court then accepted that argument in denying Tutton’s writ application, Tutton had to address it on appeal. By the court of ap- peals’s reasoning, by contrast, any sua sponte finding by a district court would be unchallengable. See State v. Saavedra, 13-04-400-CR, 2005 WL 1714296 (Tex. App.—Corpus Christi 2005, no pet.) (acknowledging district court’s ability to make a “sua sponte finding”); Turcar, LLC v. I.R.S., 451 F. App’x 509, 513 (6th Cir. 2011) (recognizing a district court’s ability to sua sponte decide a motion, and further explaining that “a decision in the moving party’s favor, even if on an alternative basis than those argued before the court, is a less extreme sua sponte action, because the moving party’s motion puts its opponent on at least some notice that defensive action is required.”); United States v. White, 704 F. Supp. 90, 93 (E.D.N.C. 1989) (noting, without comment, district court’s sua sponte identification of “a more serious problem which was the basis of his recommendation to grant the motion to suppress”).

Even if the court hadn’t ruled on an unanticipated basis, though, parties on appeal are, of course, permitted to expand upon their argu- ments before the district court. See, e.g., Henson v. State, 794 S.W.2d 385, 401 (Tex. App.—Dallas 1990, pet. ref’d) (“Apparently the State merely seeks to expand the reasoning behind its earlier argument, ra- ther than setting out a new argument.”). Requiring litigants to present their full appellate arguments before the district court, anticipating all possible counterarguments, would quite obviously interrupt trial court proceedings to an absurd degree. And, to that end, in order to preserve a complaint for appeal “all a party has to do... is to let the trial judge know what he wants, why he thinks himself entitled to it, and to do so clearly enough for the judge to understand him.” Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992) (citing TEX. R. APP. P. 33.1).

This standard is “not to be implemented by splitting hairs in the appellate courts.” Ibid. And unless this Court “splits hairs,” Tutton’s application satisfied “the fairly minimal requirements of Rule 33.1.” Resendez v. State, 306 S.W.3d 308, 318 (Tex. Crim. App. 2009) (Hol- comb, J., dissenting). Again, in Tutton’s original application for a writ of habeas corpus he alleged that, because he was not required to register as a sex offender: (1) he was actually innocent, (2) his plea was involun- tary, and (3) he received ineffective assistance of counsel because his counsel inadequately investigated the matter. (CR: 39). And on appeal, he argued just the same. (Ap. Br. at 6-7, 10). Accordingly, Tutton urges this Court that the court of appeals’s first justification for failing to con- sider his appeal was invalid. III.! The court of appeals incorrectly concluded that the neces- sary evidentiary support was not before the district court

The court of appeals further faulted Tutton for failing to provide evidence to support his arguments. Tutton, 2015 WL 4384496 at *3. Un- like the State, though—in its response, it argued as much on the basis that the numerous documents filed with Tutton’s supplemental applica- tion were not properly before the Court—the court based its holding on much narrower grounds: without only “the documents that show the Johnson County adjudication and TYC discharge in the record, the dis- trict court was constrained by the record to hold that Tutton had failed to allege facts, which, if true, would entitle him to relief.” Compare (St. Br. at 8) with Tutton, 2015 WL 4384496 at *3. But the TYC discharge document was included in the record. By the State. See (CR: 63). And the State further acknowledged that Tutton was adjudicated in Johnson County on July 10, 2006. See (CR: 61). Far from having its hands tied, then, the district court had absolutely everything it needed to grant re- lief. Thus, on this basis, too, the court was wrong to ignore the merits of Tutton’s appeal.

IV.! Conclusion

The State, its argument that Tutton was required to register as a sex offender having been clearly refuted, scrambled to defend its uncon- stitutional conviction on procedural grounds. But they were every bit as meritless. Only because the court of appeals. like the district court be- fore it, blindly assented to the State’s request, can Tutton’s conviction stand. Accordingly, Tutton respectfully requests this Court to grant this petition so that it may reverse the judgment of the court of appeals and remand this case to that Court for consideration of the merits of his ap- peal.

Prayer

For the foregoing reasons, Tutton respectfully requests this Court grant this petition for discretionary review.

Respectfully submitted, /s/ Bruce Anton BRUCE ANTON Bar Card No. 01274700 [email protected]

/s/ Brett Ordiway BRETT ORDIWAY State Bar No. 24079086 [email protected] SORRELS, UDASHEN & ANTON 2311 Cedar Springs Road, Suite 250 Dallas, Texas 75201 (214)-468-8100 (office) (214)-468-8104 (fax) Counsel for Appellant

19 Certificate of Service I, the undersigned, hereby certify that a true and correct copy of the foregoing Appellant’s Petition for Discretionary Review was elec- tronically served to the Ellis County District Attorney’s Office and State Prosecuting Attorney on September 24, 2015. /s/ Bruce Anton Bruce Anton Certificate of Compliance Pursuant to TEX. R. APP. P. 9.4(i)(3), undersigned counsel certifies that this brief complies with: 1.! the type-volume limitation of TEX. R. APP. P. 9.4(i)(2)(D) because this brief contains 1,765 words, excluding the parts of the brief ex- empted by TEX. R. APP. P. 9.4(i)(1). 2.! the typeface requirements of TEX. R. APP. P. 9.4(e) and the type style requirements of TEX. R. APP. P. 9.4(e) because this brief has been prepared in a proportionally spaced typeface using Microsoft Word 2011 in 14-point Century. /s/ Bruce Anton BRUCE ANTON

APPENDIX

21 IN THE TENTH COURT OF APPEALS No. 10-14-00360-CR EX PARTE MICAH TUTTON From the 40th District Court Ellis County, Texas Trial Court No. 34649CR MEMORANDUM OPINION In one issue, appellant, Micah Tutton, argues that the trial court abused its discretion by denying his article 11.072 application for writ of habeas corpus based on a finding that he was required to register as a sex offender as a result of his juvenile adjudication in Johnson County, Texas. See TEX. CODE CRIM. PROC. ANN. art. 11.072 (West Supp. 2014). We affirm. I. BACKGROUND On February 18, 2010, Tutton was indicted in Ellis County, Texas, for failing to comply with the sex-offender registration requirements. See generally id. art. 62.102 (West Supp. 2014). Pursuant to a plea bargain with the State, Tutton pleaded guilty to the charged offense and received a 730-day jail term and a $1,000 fine. However, the trial court suspended the prison sentence and placed Tutton on community supervision for a period of five years including installment payments of any fines and court costs as provided in the conditions of supervision. Orders modifying Tutton’s community supervision were entered on September 13, 2010; May 11, 2011; and September 20, 2011. On September 24, 2014, Tutton filed an article 11.072 application for writ of habeas corpus, asserting that: (1) he is innocent of the offense; (2) he received ineffective assistance of counsel at the time he entered into the plea bargain with the State; and (3) his plea was not knowingly and voluntarily made. Tutton argued that he had no duty to register as a sex offender because he completed a sex-offender treatment program, and because any duty to register stemming from Johnson County had been deferred.^[1] In support of his application, Tutton included an affidavit, wherein he stated the following: I was charged with failure to register as a sex offender in Ellis County, Texas. The court appointed Charles Slaton to represent me. I met with Mr. Slaton twice, both times in court. He advised me that I did not stand a chance in trial and that it would be in my interest to accept a probated sentence. He never discussed any possible defenses. I told him that, in the back of my mind, I did not believe I was required to register, but I did not know exactly why and could not explain why. I knew I had completed the required treatment and that the juvenile matters had been deferred. Mr. Slaton, to my knowledge, did not follow up on the matter. Had I known