Issue Granted - John Christopher Covey, Jr. v. State

PD-0145-09, John Christopher Covey, Jr. v. State: The CCA granted the defendant’s petition for discretionary review with oral argument in this attempted sexual assault case out of Nolan County on the following issue:

The Court of Appeals erred in holding Appellant has not established he received ineffective assistance of trial counsel.

Here, Covey challenged his plea as involuntary based upon ineffective assistance of counsel because he was under the impression that the trial court had the discretion to terminate his sex offender registration. His attorney had sent him a letter indicating as much, and at the plea hearing, Covey asked the trial court if he could get taken off “the sex offender earlier than probation is up”. However, at a writ hearing he claimed his plea was involuntary because there was no way he could be eligible to be taken off sex offender registration pursuant to Article 62.404 of the Texas Code of Criminal Procedure because they were keyed to federal guidelines. Under the federal guidelines, Covey would have to serve a minimum of ten years on probation to be eligible for early termination of registration, but his sentence was only eight years, thus requiring him to register for life. Covey also conceded that a jury would have found him guilty had he fought the case, thus putting him in the very same position. While his attorney’s letter indicated he might have to register for life, Covey stated that he thought the term was discretionary.

The court of appeals held in an unpublished opinion that Covey had failed to establish that his trial counsel had been ineffective. The court first noted that the issue of early release from sex offender registration was not before it. Rather, the only issue was whether trial counsel had rendered ineffective assistance. The court of appeals noted that trial counsel always stressed that there were no guarantees when counsel could petition for early termination from sex offender registration. The trial court stressed the same representations in open court. Moreover, attempted sexual assault does not require lifetime registration, but rather eighteen years registration. No testimony was presented as to what decision Covey would have made if he had been faced with a maximum period of registration of eighteen years. Finally, Covey did not show he was ineligible for filing a motion for early release from sex offender registration, an necessary step in his ineffective assistance claim. Here’s a link to the court of appeals case info.