1 Jo hn T. Boy d, Chief Justice (Ret.), S eventh Cour t of Appeals, sit

ting by assignment. Tex. Gov’ t Code Ann. §75.002( a)(1) (Vernon Supp. 2003). NO. 07-02-0183-CR IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL E APRIL 3, 2003

______________________________ JOSEPH MICHAEL STERLING, APPEL LANT

V. THE STATE OF TEXAS, A PPELLEE

_________________________________ FROM THE 185 TH DISTRIC T COURT O F HARRIS COU NTY; NO. 886600; HON ORABLE SUSAN BROWN, JUDGE

_______________________________ Before QUINN and REAVIS, JJ., an d BOYD, S.J. 1 Appellant

was co nvict ed of failing to r egister as

a sex offender as required b y Chapter 62 of the Code of

Criminal Procedure. H is only complaints on appea l are that the statute is so vague as to render itvoid under the Texas and Federal C onstitutions. Finding no meri t in ap pella nt’s complai nts, w e affirm.2 All statutory references shal l be to th e Code of Criminal Procedure unless otherwise noted. 2 The relevant facts are undisputed. Appellant w as convic

ted of sexual as sault and aggravate d sexual as sault in 1987. The record sug gests that app ellant’s pr obation was revoked on at le ast t wo occasions and he was ult imately r eleased from pris on in 1999. By virtue of his convictions, appellant was requir ed to regis ter as a sex offender on his release by artic le 62.02(a) of the Code of Criminal Procedure 2 (Vernon Pamph. 2003). Becau se appellant

had two reportable convictions, he was also subject to the provisions ofarticle 62.06, which required him to “report to the . . . local law enforcement agen cy . . . not less than once in each 90 day period . . . to verify the information in the registration f orm.” Id. Appellant

r egistered with the Houston Police Departmen t in 1999 and verified his infor mation as correct each 90 days through January 2001. Appellan t failed to re port i n April 2001. Officers of the Se x Offend er Compliance Unit of the Hou ston Police Department

investigated appellant’s failure to report by confirmi ng that he no long er live d athis registered address and had not reg istered w ith another ag ency. He was indi cted for failure to comply w ith sex offender r egistrati on require ments on October 1 8, 2001. Se e art. 62.10(a).
Over hisplea of not guilty , appellant was convicted by a jur y and punishment

was assessed by the jury at 27 years co nfinement in the Insti tutional Div ision of the Texa s Department

of Cri minal Justice. Appellant does not challeng e the sufficiency of the evidence supporting his conv iction, only the faci al constituti onality of the statute under3

which he was conv icte d. The co re of appellant’s challenge is that “the Texas statutory scheme does not req uire that an i ndividual be given any type of notice of the duty

to report to register , or

any type of warning, before a criminal prosecution f or failure to register is aut hor ized.” He also notes the indictment d id not alleg e that he had been g iven any warning ofthe nec essity ofreportin g or registeri ng.
The authority

on which appellant places primary relian ce is Lambert v. California , 355 U .S. 225, 78 S.Ct. 240, 2 L. Ed.2d 228 (1957), which involved a city ord inanc e requiri ng anyone conv icted of a felony to repo rt to the poli ce withi n five days of taking up residence in the city . Before consider ing application of the ho ldin g in Lambert to the present case, we must determine if appellant’s complaint s are properly before us. Appellant

does not disputethat he had actual knowledg e of his duty to register and to verify his regi stration infor mation quarterly. Nor does he deny t hat he did not ra ise any constitutional challenge to the statute in the trial court. Consequentl y, the initi al iss ues we must consider are whether hi s failure to raise that issue in the court be low waived his complaint and w hether he may r aise a facial c hallenge to t he statute.
The State init ially ar

gues that appel late revi ew of a statute’ s constituti onality as applied must be raised in the trial court. See Curry v. State , 910 S.W.2d 490, 496 (Tex.Cri m.App. 1995). This is a correct statement of th e law, but has no application here because appellant’s c hallenge is to the facial validity of the statute, a cl aim which may be raised for the first ti me on appeal. See Marin v. State , 85 1 S.W.2d 275, 2794

(Tex.Cri m.App. 1993); Marbut v. Sta te, 76 S.W.3d 742, 749 (Tex.A pp.--Waco 2001, pet. ref’d). Appellant did not waive his challe nge to the facial validity of article 62.09 by faili ng to present that c hallenge to t he trial cour t. However, the fac t that appellant could m ake no complaint that th e statute is unconstitutionally v ague as to him precludes his facial validity challenge. In Village of Hoffman Estates v. The Flipside, Hoffman Estates Inc. , 455 U.S. 489, 102 S.C t. 1186, 71 L.Ed.2d 362 (1982), the Court noted that “one to whose conduc t a statute cl early appl ies maynot s ucce ssfu lly

chal leng e it

fo r vaguene s s.” 455 U.S. at 495 (n.7). Here, the evidence shows that appella nt had a ctual kn owledge of his duty to verify his regi st ration information. It also shows that under Chapter 62, he would have been informed of his obligations

under that chapter

on his relea se from prison. See Tex. Code Crim. Proc . art. 62.03(a)(1)(Vernon Pamph. 2003 ). Moreover, a ppella nt’s kno wledge and failure to object at trial di stinguish the facts before us from th ose presented i n Lambert, supra

. We overrul e both of appellant’s issues on appeal and affirm the judgment of the trial court.

John T. Bo yd Senior Justice Do not publish

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