Campbell, Ex Parte Craig Ronald

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-75,838

EX PARTE CRAIG RONALD CAMPBELL, Applicant ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 23,639-A IN THE 300 TH JUDICIAL DISTRICT COURT

FROM BRAZORIA COUNTY C OCHRAN, J., filed a concurring opinion in which W OMACK, J., joined.

OPINION

I join in the denial of relief to this habeas corpus applicant because he was given at least a minimal due-process opportunity to contest the appropriateness of imposing “Special Condition ‘X’ (Sex Offender Condition)” 1 upon him as a condition of his release on parole. One might reasonably question the wisdom of the parole board’s decision in this matter, but it did not violate the Due Process Clause of the federal constitution.

Seventeen years before his current release on parole in 2006, applicant pled guilty to the Class B misdemeanor of indecent exposure. Twenty-two years before his release on parole, applicant pled guilty to misdemeanor assault. The factual allegations set out in the original police offense reports from these remote misdemeanor convictions are what led the parole board to consider the imposition of Special Condition X. Those allegations have never been tested in a court for their accuracy, and applicant was not convicted of the specific offenses originally filed against him.

The written notice given to applicant by the parole division stated its reasons for considering the imposition of sex-offender conditions: victims were under 17 years of age, the conditions also include (1) a prohibition against any unsupervised contact with any child under 17 in person, by telephone, or by any electronic means unless the parolee is the child’s parent; (2) a prohibition against forming any relationship (dating, marriage, or platonic) with any person who has children under 17 without written approval by the parolee’s supervising officer; (3) a prohibition against participating or attending any athletic, civic, or cultural program if the participants include children under 17; and (4) a prohibition against going “in, on, or within a distance specified by board policy of a premise where children commonly gather, including a school, day care facility, playground, public or private youth center, public swimming pool, or video arcade facility.” Additional conditions that a parole officer may, in his discretion, impose include (1) a prohibition against leaving the approved county without written permission; (2) a prohibition against owning or operating computer equipment without written authorization, but if such authorization is given, submission to a warrantless search of all such equipment “at any time, day or night, by any TDCJ parole or law enforcement official”; (3) a prohibition against owning or operating photographic equipment without written approval; (4) the notification of any prospective employer of the parolee’s criminal history; (5) a written curfew requirement; and (6) the submission to searches of the parolee’s person, car, home, or any other property at any time, day or night, without a warrant by the parole officer.

Arrest for Attempted Sexual Assault–Plead to Misdemeanor Assault (Allegedly tried to rape an adult white female).2 Arrest for Indecency With a Child–Plead to Public Lewdness [sic] (Allegedly exposed penis to persons who were 17 years of age or younger at a public park. Offender claims to have been urinating).3 Awaiting Sex Offender assessment prior to release from TDCJ-ID. Applicant was told that he could submit a written statement and other documentation within thirty days to explain why the sex-offender conditions should not be imposed. He did not do so. The parole board then ordered that applicant submit to a sex-offender evaluation by a psychologist. He did so, and he explained his version of the events underlying the two previous misdemeanor convictions. The psychologist assumed that all of the facts within the original police offense reports were true, and therefore concluded that applicant was in denial of his likelihood to commit future sexual offenses. The psychologist’s report stated,

Based on the fact that he reported being unable to recall whether he did in fact attempt to rape the adult female, and that he denied intentionally exposing his penis to the children, a specific issue polygraph examination is also recommended in order to assist in [applicant’s] treatment planning.

The record does not reveal whether applicant was ever given a copy of the psychologist’s report. Applicant was not given a second opportunity to be heard before the parole panel voted to impose Special Condition X, including a child-safety zone, on him.

A month and a half after these sex-offender conditions were imposed, applicant candidly told his parole officer that he had been going to his father’s home to take a shower every afternoon because the “sponsor house” where he lived did not have hot water. Unfortunately, applicant’s father’s house is located within 500 feet of a child-care facility.4 That was why applicant had to move out of his family’s house into a “sponsor house.” Thus, it was undisputed that applicant knew that it was verboten to visit his father’s home, even to take a hot shower. Although applicant worked successfully at a full-time job, had avoided drugs and alcohol, and was doing well on supervision, his parole was revoked, and he was returned to prison.

As the Court correctly notes, a conviction for the Class B misdemeanor of indecent exposure is a “sex” offense because (1) it is listed in Chapter 21 of the Penal Code entitled “Sexual Offenses,” and (2) it involves an intent “to arouse or gratify the sexual desire” of someone. A seventeen-year-old conviction for Indecent Exposure might not appear to be the sort of dangerous sex crime that the Texas Legislature had in mind when it enacted the stringent sex-offender registration and treatment statutes, but it does fit within a literal application of the law.

Nonetheless, the Parole Division wisely erred on the side of discretion and did not automatically impose Special Condition X on applicant.5 Instead, it provided him with advance notice of its reasons for considering imposition of the sex-offender special conditions and an opportunity to provide written documentation as to why those conditions should not be imposed. It also gave him an opportunity to explain, during a personal interview, to the parole board’s forensic psychologist why those conditions should not be imposed. Applicant did not have any further recourse or forum in which to dispute the psychologist’s report (if he was even given a copy of that report), but at least he had had some small, informal opportunity to present his side of the story.6

Once Special Condition X was imposed, it is not surprising that applicant would fail to abide by every one of its intrusive conditions and prohibitions. Taking hot showers at his father’s home, which happened to be located near a child-care facility, is not the sort of violation that would necessarily call for returning a parolee to a high-cost prison.7 However, the parole board’s action was authorized by law. I therefore agree that applicant has not proven that he is entitled to relief on his claim.

Filed: October 15, 2008 Publish