| On June 8, 1999, 21-year-old Nolan Ryan Overstreet was charged with failing to register on November 3, 1998, as a sex offender in Tarrant County, Texas.
The indictment said that Overstreet had been convicted of third-degree sexual assault, a misdemeanor, in Colorado in 1997, which was a reportable conviction under Texas’s Sex Offender Registry Act.
Overstreet pled guilty to the offense in Tarrant County District Court on May 24, 2000, and was sentenced to 90 days in jail.
At the time that Overstreet was charged, Texas law said “an offender was required to register for an out-of-state conviction if the offense contained ‘elements that are substantially similar to the elements of an offense listed’” as a sex crime in Texas.
In 2001, the Texas State Legislature assigned the Texas Department of Public Safety (DPS) the responsibility of determining which out-of-state crimes were “substantially similar” to in-state crimes. DPS issued a letter in 2003 saying that Overstreet’s third-degree sexual assault charge was not substantially similar to a Texas crime that would require registration. Three years later, DPS reversed course and said the crimes were similar, requiring Overstreet to register if he returned to Texas.
Overstreet had moved to Montana, but he wanted to return to Texas. In early 2020, he filed a petition for a writ of habeas corpus in Tarrant County that said DPS had drawn the boundaries too loosely; his conviction was not substantially similar to a Texas crime that required registration.
Overstreet’s Colorado conviction, a misdemeanor, was based only on the touching of a body part. The Texas law, which was said to be similar, required penetration. In addition, Overstreet’s conviction did not specify an age for the victim.
A judge in Tarrant County denied the writ petition on March 5, 2020, adopting the state’s proposed findings and conclusions. Overstreet appealed. His attorney, Bruce Anton, said the trial judge’s findings missed the mark.
“Had Overstreet been convicted under a different provision of the Colorado code, the findings would have some force,” he wrote. “It is not a registerable offense in Texas to have mere sexual contact with another. Overstreet was not convicted under the Colorado equivalent of indecency with a child and therefore, Overstreet is not required to register in Texas.”
Included in the pleadings was an affidavit from Overstreet. It said the Texas conviction, unlike the Colorado conviction, was a felony, the only one on his record, and it impacted his life every day. He said he had pled guilty based on bad advice from his attorney at the time.
The Texas Court of Criminal Appeals upheld the lower-court ruling on June 17, 2020.
The next day, Overstreet filed a civil suit in Travis County against DPS, challenging its determination that the Colorado and Texas statutes were “substantially similar.”
Judge Catherine Mauzy granted Overstreet’s motion for summary judgment on October 30, 2020. The state appealed.
On May 25, 2022, a three-judge panel from the state’s Third Court of Appeals affirmed the lower-court ruling. The court said the crimes from the two states “may be similar in a general sense, [but] they do not display the high degree of likeness required to be substantially similar.”
After the appellate ruling, Overstreet filed a new habeas petition in Tarrant County Circuit Court. He said the Third District’s ruling was new evidence of innocence that showed he did not have to register in Texas in 1998. He said this evidence had not been available at the time he entered his plea or when he filed his first habeas petition.
The state opposed the motion. It said that the Third District’s ruling was not new evidence; its determination could have been obtained earlier with proper diligence if Overstreet had challenged DPS prior to filing the first habeas petition.
On February 9, 2024, Judge Jacob Mitchell issued findings of fact and conclusions that recommended Overstreet’s habeas petition be granted. He agreed with Overstreet that the Third District ruling was new evidence of innocence not available either at the time Overstreet entered his plea or during his subsequent appeals.
Judge Mitchell noted that in denying Overstreet’s initial habeas petition, the courts had painted with too broad a brush when defining “substantially similar,” incorporating the underlying conduct of the case rather than relying on the statutory language. The Third District, he said, had struck down that “conduct-specific analysis.”
The Texas Court of Criminal Appeals granted Overstreet’s petition and vacated his conviction on May 1, 2024, agreeing with Judge’s Mitchell’s recommendations.
The state dismissed Overstreet’s charge on June 27, 2024.
– Ken Otterbourg
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