Lane, Danny Richard

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS

NO. WR-90,084-01

EX PARTE DANNY RICHARD LANE, Applicant

On Application for a Writ of Habeas Corpus
Cause No. 1133791-A from the 179th District Court
Harris County

RICHARDSON, J., filed a concurring opinion in which SLAUGHTER, J., joined.

CONCURRING OPINION

I join with the majority and write separately with additional thoughts on the

majority’s denial of relief. I agree, in Applicant’s sole claim of ineffective assistance of

counsel, that Applicant’s trial counsel was not ineffective for failure to predict the future.

On June 9, 1982, Applicant pled guilty to the offense of aggravated rape. On March

23, 1987, the trial court terminated his probation and dismissed the conviction pursuant to

then-Article 42.12 of the Texas Code of Criminal Procedure. Specifically, the trial judge

set aside the verdict and released him from:
all penalties and disabilities resulting from the offense or crime of which he
has been convicted, except that proof of his said conviction or plea of guilty
shall be known to the court should the defendant again be convicted of any
criminal offense.

Act of 1965, 59th Leg., p. 317, ch. 722, § 1 (formerly codified as TEX. CODE CRIM.

PROC. art. 42.12, § 7, current version at art. 42A.701(f)). The trial judge was well within

his discretion as allowed by statute at the time.

In 1991, Texas enacted its sex-offender registration statute requiring any person

with a “reportable conviction or adjudication” to register with local law enforcement in the

area of their residence. Act of June 15, 1991, 72nd Leg., R.S., ch.572, Tex. Gen. Laws

2029–32 (redesignated as Tex. Code Crim. Proc. Ch. 62); see Tex. Code Crim. Proc.

62.051. In 1997, the Texas Legislature amended the statute to be retroactive to persons

convicted prior to the statute’s 1991 inception stretching back to 1970. 1 0F

Subsequently, Applicant was added to the sex offender registry in 1998 and has

since been convicted of multiple failures to comply with the sex offender registration

requirements. Applicant now complains that his trial counsel was ineffective for failing to

inform him that he would have a duty to register upon pleading guilty. As a result of his

1
Rodriguez v. State, 93 S.W.3d 60, 66 (Tex. Crim. App. 2002) The United States Supreme
Court has found that sex offender registration laws do not violate the Ex Post Facto Clause of the
United States Constitution when they are non-punitive. See Smith v. Doe, 538 U.S. 84, 106 (2003)
(finding Alaska’s Sex Offender Registration Act constitutional). This Court reached a similar
conclusion in 2002 regarding the 1997 retroactivity amendment to the Texas sex offender registry
laws. Id. at 79 (“The intent of the 1997 amendments to Texas’s sex-offender registration statute
was civil and remedial in nature. Moreover, weighing all the Kennedy factors, we conclude that
the effect of the amendments is not so punitive as to transform the statute into a criminal
sanction.”).

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attorney’s ineffective counsel, Applicant complains that his plea was not knowing and

voluntary.

I concur in finding that Applicant has failed to show his trial counsel’s

ineffectiveness. To hold any attorney to that requirement would create an impossible

professional standard to satisfy. Furthermore, where an attorney is also board certified,

holding them to an impossible standard also threatens their ability to retain such

professional credentials. A board-certified attorney who is found guilty of professional

misconduct is required to report themselves to the Texas Board of Legal Specialization. 2 1F

This includes court findings of ineffective assistance of counsel. Upon review of the

misconduct, the Texas Board of Legal Specialization maintains the discretionary authority

to revoke the attorney’s board certification. Thus, for this Court to set precedent requiring

attorneys to predict the future would be a potential sanction not derived from careful

reasoning and contemplation that the judiciary ought to pursue.

Therefore, I agree that Applicant’s claim of ineffective assistance of counsel must

fail. For these reasons, I join the majority and respectfully concur.

Filed: June 28, 2023

Publish

2
Tex. Bd. Leg. Specialization Rules and Reg. § II(A); see Tex. Disc. R. Prof. Cond. 1.01,
8.04 (requiring attorneys in Texas to ethically provide competent and diligent representation).

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