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
ba@sualaw.com Dallas, Texas 75201
214-468-8100 (office)
BRETT ORDIWAY 214-468-8104 (fax)
State Bar No. 24079086
bordiway@sualaw.com 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.
2
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!
3
Certificate of Compliance ......................................................................... 20!
Appendix .................................................................................................... 21!
4
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
5
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
6
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.
7
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
8
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.
9
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
10
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).
11
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
12
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.
13
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-
14
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
15
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
16
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.
17
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
ba@sualaw.com
/s/ Brett Ordiway
BRETT ORDIWAY
State Bar No. 24079086
bordiway@sualaw.com
18
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
20
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
1 Regarding Tutton’s completion of the Pegasus sex-offender treatment program, the State argued
in the trial court and on appeal that this requirement pertained to Tutton’s conviction from Ellis County
Court at Law Number Two, sitting as a juvenile court. The State further argued that Tutton’s registration
requirement stemmed from his Johnson County conviction, which resulted in Tutton being sentenced to
the Texas Youth Commission (“TYC”) for an indeterminate period of time and a deferral of the registration
requirement until Tutton completed a TYC treatment program.
Ex parte Tutton Page 2
that I was not required to register, I would not have agreed to plead guilty,
but would have contested the matter.
Tutton did not proffer any other evidence at that time, nor did Tutton’s application refer
to any other documents, exhibits, or attachments.
The State responded that Tutton had failed to carry his burden to show that he
was not required to register as a sex offender and that Tutton was required to register at
the time of his plea. The trial court denied Tutton’s habeas-corpus application as
frivolous without a hearing and made several findings of fact, including:
The Court finds that Applicant failed to successfully complete the Texas
Youth Commission’s Sexual Behavior Treatment Program and is required
to register as a sex offender due to his adjudication from Johnson County.
The Court finds that the Johnson County order in Cause Number J04333
deferred the decision on requiring registration under Texas Code of
Criminal Procedure article 62.352(b)(1) until Applicant completed
treatment for his sexual offense as a condition of probation or while
committed to the Texas Youth Commission and did not defer “until further
order of the court.”
The Court finds that Applicant has failed to allege or prove any facts which,
if true, would entitle him to relief; that there are no unresolved facts to be
resolved; and that no hearing is necessary.
Shortly after the trial court’s denial of the application, Tutton filed a
“Supplemental Response and Unopposed Request for Rehearing” and filed additional
documents “that need to be filed with the 11.072 Application for Writ of Habeas
Corpus . . . .” Contrary to Tutton’s assertion, the State objected to Tutton’s request for a
rehearing and argued that the newly-filed documents did not change the State’s position
Ex parte Tutton Page 3
that Tutton was legally required to register as a sex offender. The trial court ultimately
denied Tutton’s rehearing request, and this appeal followed.
II. TUTTON’S HABEAS-CORPUS APPLICATION
In his sole issue on appeal, Tutton contends that the trial court abused its discretion
in denying his habeas-corpus application. Specifically, Tutton argues that he was not
required to register as a sex offender because the Texas Youth Commission, not Tutton,
was required by rule to register Tutton as a sex offender, and because the Texas Youth
Commission rule purportedly requiring it to register Tutton irreconcilably conflicts with
the Code of Criminal Procedure.
A. Standard of Review
We review a habeas court’s decision on an application for a writ of habeas corpus
under an abuse-of-discretion standard. Ex Parte Wheeler, 203 S.W.3d 317, 324 (Tex. Crim.
App. 2006). The applicant bears the burden of establishing by a preponderance of the
evidence that the facts entitle him to relief. Ex parte Thomas, 906 S.W.2d 22, 24 (Tex. Crim.
App. 1995). We review the record evidence in the light most favorable to the habeas
court’s ruling, and we must uphold that ruling absent an abuse of discretion. Kniatt v.
State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006); see Ex parte Rodriguez, 378 S.W.3d 486,
489 (Tex. App.—San Antonio 2012, pet. ref’d). We give almost total deference to the trial
court’s findings that are “’based upon credibility and demeanor.’” Ex parte Amezquita,
Ex parte Tutton Page 4
223 S.W.3d 363, 367 (Tex. Crim. App. 2006) (quoting Ex parte White, 160 S.W.3d 46, 50
(Tex. Crim. App. 2004)).
In habeas corpus proceedings, “[v]irtually every fact finding involves a
credibility determination” and “the fact finder is the exclusive judge of the
credibility of the witnesses.” Ex parte Mowbray, 943 S.W.2d 461, 465 (Tex.
Crim. App. 1996). In an article 11.072 habeas case, such as the one before
us, the trial court is the sole finder of fact. Ex parte Garcia, 353 S.W.3d 785,
788 (Tex. Crim. App. 2011). “There is less leeway in an article 11.072 context
to disregard the findings of the trial court” than there is in an article 11.07
habeas case, in which the Court of Criminal Appeals is the ultimate fact
finder.
Ex parte Ali, 368 S.W.3d 827, 830 (Tex. App.—Austin 2012, pet. ref’d). We must also defer
“not only to all implicit factual findings that the record will support in favor of a trial
court’s ruling, ‘but also to the drawing of reasonable inferences from the facts.’” Amador
v. State, 221 S.W.3d 666, 674-75 (Tex. Crim. App. 2007) (quoting Kelly v. State, 163 S.W.3d
722, 726 (Tex. Crim. App. 2005).
B. Discussion
None of the arguments made by Tutton on appeal were made in his habeas-corpus
application.2 To preserve error, Texas Rule of Appellate Procedure 33.1(a) requires the
complaining party to make a specific objection or complaint and obtain a ruling thereon
2 Tutton’s appellate complaints also do not comport with the arguments made in his “Supplemental
Response and Unopposed Request for Rehearing.” However, this is not central to this appeal because
Tutton only challenges the trial court’s denial of his habeas-corpus application, and the arguments made
in his “Supplemental Response and Unopposed Request for Rehearing” were not before the trial court at
the time the trial court denied Tutton’s habeas-corpus application. See Willover v. State, 70 S.W.3d 841, 845
(Tex. Crim. App. 2002) (“Finally, an appellate court must review the trial court’s ruling in light of what was
before the trial court at the time the ruling was made.”) (citing Weatherred v. State, 15 S.W.3d 540, 542 (Tex.
Crim. App. 2000)).
Ex parte Tutton Page 5
before the trial court. See TEX. R. APP. P. 33.1(a); see also Wilson v. State, 71 S.W.3d 346, 349
(Tex. Crim. App. 2002). Texas courts have held that points of error on appeal must
correspond or comport with objections and arguments made at trial. Dixon v. State, 2
S.W.3d 263, 273 (Tex. Crim. App. 1999) (“[A]n objection stating one legal theory may not
be used to support a different legal theory on appeal.”); see Wright v. State, 154 S.W.3d
235, 241 (Tex. App.—Texarkana 2005, pet. ref’d). “Where a trial objection does not
comport with the issue raised on appeal, the appellant has preserved nothing for review.”
Wright, 154 S.W.3d at 241; see Ex parte Tucker, 977 S.W.2d 713, 715 (Tex. App.—Fort Worth
1998) (holding that the issue of excessive bond would not be addressed on appeal when
it was not included in a habeas application that was the basis of the appeal), pet. dism’d, 3
S.W.3d 576 (Tex. Crim. App. 1999) (per curiam); see also Landrum v. State, No. 10-13-00281-
CR, 2014 Tex. App. LEXIS 10194, at *17 (Tex. App.—Waco Sept. 11, 2014, pet. ref’d) (mem.
op., not designated for publication) (“A complaint will not be preserved if the legal basis
of the complaint raised on appeal varies from the complaint made at trial. Accordingly,
because appellant’s issue does not comport with the argument made at trial, this issue
presents nothing for review . . . .” (internal citations omitted)). Because Tutton’s appellate
complaints do not comport with the arguments made in the trial court, we cannot say
that Tutton has preserved his appellate complaints for our review. See TEX. R. APP. P.
33.1(a); see also Wilson, 71 S.W.3d at 349; Dixon, 2 S.W.3d at 273.
Ex parte Tutton Page 6
In any event, even if Tutton had preserved this issue for review, the record does
not indicate that Tutton satisfied his burden of proving facts which would entitle him to
habeas relief. In his application, Tutton provided only an affidavit in which he stated
that he did not believe when he entered his guilty plea that he had to register as a sex
offender. Besides his own speculation, Tutton does not refer to any exhibits or documents
in his application. On the record as presented to the trial court, even including the
exhibits that were allegedly left out of the original documents supporting the petition and
presented to the habeas court with the request for rehearing, the trial court’s finding that
“the Applicant has failed to allege or prove any facts which, if true, would entitle him to
relief” is the only finding upon which the judgment is necessarily based, and the only one
required to support the judgment. Because the failure to register was allegedly based on
the Johnson County judgment and his discharge from TYC, those documents were critical
to a proper determination of the petition for writ of habeas corpus on the basis now
argued by Tutton on appeal. Those documents do not appear in the habeas record.
Further, it does not appear that Tutton focused on the Johnson County judgment and
TYC discharge until appeal and, thus, Tutton presents an argument on appeal that was
not presented to the habeas court; this explains why those documents are not part of the
habeas record. The problem for Tutton is that without the documents that show the
Johnson County adjudication and TYC discharge in the record, the habeas court was
Ex parte Tutton Page 7
constrained by the record to hold that Tutton had failed to allege facts, which, if true,
would entitle him to relief.
Therefore, viewing the evidence in the light most favorable to the trial court’s
ruling, we cannot say that the trial court abused its discretion in denying Tutton’s
application. See Ex Parte Wheeler, 203 S.W.3d at 324; Kniatt, 206 S.W.3d at 664; see also Ex
parte Rodriguez, 378 S.W.3d at 489. We overrule Tutton’s sole issue on appeal.
III. CONCLUSION
Having overruled Tutton’s sole issue on appeal, we affirm the judgment of the
trial court.
AL SCOGGINS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed July 9, 2015
Do not publish
[CR25]
Ex parte Tutton Page 8
Tutton, Ex Parte Micah
Combined Opinion