Ex Parte James A. Rubio v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: July 27, 2023
• Docket: 09-22-00219-CV
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

________________

NO. 09-22-00219-CV ________________

EX PARTE JAMES A. RUBIO

________________________________________________________________________

On Appeal from the 435th District Court Montgomery County, Texas Trial Cause No. 11-04-04400-CV ________________________________________________________________________

MEMORANDUM OPINION

Appellant James Rubio is a civilly committed sexually violent predator

(SVP).1 In twenty-three points of error, Rubio appeals the trial court’s denial of his

application for writ of habeas corpus. We affirm the trial court’s order denying

habeas relief.

1 See Act of May 21, 2015, 84th Leg., R.S., ch. 845, §§ 1-44, 2015 Tex. Sess. Law Serv. 2700-2712 (current version at Tex. Health & Safety Code Ann. §§ 841.001-.153).

1 Background

Rubio has been convicted of a total of four sexually violent offenses, two in

Georgia and two in Texas. See Tex. Health & Safety Code Ann. § 841.002(8)(A),

(E), (G); O.C.G.A. § 16-5-21(a)(1). While Rubio was incarcerated for the most

recent of these offenses, the State filed its petition to have Rubio civilly committed

as a sexually violent predator. See Tex. Health & Safety Code Ann. § 841.041(a). A

jury found Rubio to be a sexually violent predator, and the trial court signed a civil

commitment order requiring Rubio to “reside in supervised housing at a Texas

residential facility[.]” Rubio appealed his commitment, but while his appeal was

pending, he left his court-ordered residence. We ordered that he voluntarily

surrender by December 6, 2012, but Rubio failed to demonstrate that he complied

with this Court’s order, which required him to surrender and comply with his civil

commitment order by December 6, 2012. See Tex. R. App. P. 42.3(c). Even though

Rubio was provided an opportunity to explain why his appeal should not be

dismissed, he failed to establish that good cause existed to retain his appeal. For that

reason, we dismissed his appeal with prejudice. See In re Commitment of Rubio, No.

09-11-00602-CV, 2013 Tex. App. LEXIS 1408 (Tex. App.—Beaumont Feb. 14,

2 2013, pet. denied) (mem. op). Since then, Rubio has filed multiple unsuccessful

requests for relief from the order of civil commitment in state and federal court.2

In the proceeding at issue here, Rubio applied for a writ of habeas corpus in

the 435th District Court of Montgomery, County, Texas. However, Rubio did not

support his application with a supporting affidavit or with documents to support his

application for habeas relief.

When the State answered Rubio’s application, it supported its answer with

this Court’s 2013 memorandum opinion dismissing Rubio’s appeal from the civil

commitment order, our mandate, the denial of Rubio’s petition for review by the

Supreme Court of Texas, and this Court’s 2017 memorandum opinion denying

Rubio’s petition seeking a writ of mandamus to compel the trial court to rule on his

motion seeking to declare the judgment committing him as a sexually violent

predator void because one of his prior convictions arose from a no contest plea. The

trial court signed an order denying the application on June 27, 2022, and Rubio

appealed.

2 Rubio v. Lumpkin, No. 20-20158, 2022 U.S. App. LEXIS 12469 (5th Cir. May 9, 2022); Rubio v. Davis, 907 F.3d 860 (5th Cir. 2018); In re Commitment of Rubio, No. 09-22-00151-CV, 2022 Tex. App. LEXIS 5214 (Tex. App.—Beaumont July 28, 2022, no pet.) (mem. op.); In re Commitment of Rubio, No. 09-19-00230- CV, 2019 Tex. App. LEXIS 7548 (Tex. App.—Beaumont Aug. 22, 2019, no pet.) (mem. op.); In re Commitment of Rubio, No. 09-19-00042-CV, 2019 Tex. App. LEXIS 1774 (Tex. App.—Beaumont Mar. 7, 2019, no pet.) (mem. op.); In re Commitment of Rubio, No. 09-17-00343-CV, 2017 Tex. App. LEXIS 9146 (Tex. App.—Beaumont Sept. 28, 2017, no pet.) (mem. op.). 3 Merits Ruling and the Standard of Review

A civilly committed person may appeal an order denying habeas relief on the

merits of the application for a writ of habeas corpus. See In re Commitment of

Richards, 202 S.W.3d 779, 788 (Tex. App.—Beaumont 2006, pet. denied). Yet the

appellate record before us in this appeal shows the trial court neither issued the writ

of habeas corpus nor held an evidentiary hearing on Rubio’s application for habeas

relief. Still, the trial court’s order recites that Rubio’s application is denied on all

grounds and states the trial court reviewed all documents that it received from both

parties as relate to Rubio’s application. Given the recitals in the trial court’s order,

we conclude the trial court ruled on the merits of Rubio’s petition. See id.

In general, absent statutory direction to the contrary, post-judgment habeas

relief is available only to address jurisdictional defects and violations of

constitutional and fundamental rights that would qualify as an absolute right or

prohibition. Ex parte Johnson, 541 S.W.3d 827, 829 (Tex. Crim. App. 2017). The

writ of habeas corpus is an extraordinary remedy that is available only when there is

no other adequate remedy at law. Ex parte Carter, 521 S.W.3d 344, 347-48 (Tex.

Crim. App. 2017). “Even a constitutional claim is forfeited if the applicant had the

opportunity to raise the issue on appeal.” Ex parte Townsend, 137 S.W.3d 79, 81

(Tex. Crim. App. 2004). A habeas application must allege facts that show both a

4 cognizable irregularity and harm. Ex parte Tovar, 901 S.W.2d 484, 485-86 (Tex.

Crim. App. 1995).

In a writ application proceeding, the habeas applicant bears the burden of

proving his allegations. Richards, 202 S.W.3d at 791. Generally, a cognizable

constitutional challenge must be asserted in the trial court to be raised on appeal.

This requirement allows a trial court the opportunity to rule on an issue. See id. at

793. We apply an abuse of discretion standard to the trial court’s denial of habeas

relief. Id. at 791.

Analysis

In issue one, Rubio argues the trial court lacked personal jurisdiction over

Rubio and subject matter jurisdiction over the case because the State used a criminal

conviction in an indictment to which Rubio had pleaded nolo contendere to establish

Rubio’s status as a repeat offender. He argues Article 27.02(5) of the Texas Code of

Criminal Procedure prohibits use of the conviction in a civil commitment

proceeding. See Tex. Code Crim. Proc. Ann. art. 27.02(5).

Article 27.02(5) of the Texas Code of Criminal Procedure does not apply to

SVP cases. In re Commitment of Eddington, No. 10-22-00360-CV, 2023 WL

3230900, at *2 (Tex. App.—Waco May 3, 2023, no pet. h.) (mem. op.). Importantly,

for purposes of an appeal from the denial of habeas relief, Article 27.02(5) creates

an evidentiary standard that does not implicate the trial court’s subject matter

5 jurisdiction. See Tex. Code Crim. Proc. Ann. art. 27.02(5). Whether a court has

subject matter jurisdiction is a question of law. Tex. Nat. Res. Conservation Comm’n

v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002). The State invoked the trial court’s

subject matter jurisdiction by filing of a petition alleging predator status under

section 841.041(a) of the Health and Safety Code as it existed in April 2011. See Act

of May 30, 1999, 76th Leg., R.S., ch. 1188, § 4.01, 1999 Tex. Gen. Laws 4122, 4146

(amended 2003, 2015, 2021). We conclude that Rubio’s general appearance in the

trial court waived any complaint he otherwise might have had regarding the trial

court’s exercise of personal jurisdiction. See Tex. R. Civ. P. 120, 124.

In issue two, Rubio claims the SVP statute violates constitutional due process

and equal protection because only men are committed under the SVP statute. See

generally Tex. Health & Safety Code Ann. §§ 841.001-.153 (“the SVP statute”).

Generally, a complaint regarding the constitutionality of a statute is subject to the

ordinary rules of procedural default. See In re Commitment of Clemons, No. 09-15-

00488-CV, 2016 WL 7323298, at *7 (Tex. App.—Beaumont Dec. 15, 2016, pet.

denied) (mem. op.). Due process and equal protection challenges must be asserted

at trial. See Dreyer v. Greene, 871 S.W.2d 697, 698 (Tex. 1993). Rubio has not

shown that his equal protection claim concerns an absolute right or prohibition that

may be raised for the first time in a habeas proceeding. Assuming for the sake of

argument that Rubio did not forfeit his equal protection claim by failing to raise it in

6 his original civil commitment trial, the habeas application and record failed to supply

a factual basis for the claim. The SVP statute lacks gender-exclusive language and

the habeas record lacks evidence that the Texas Civil Commitment Office

categorically excludes women from its treatment program.

In issues three through ten and eighteen, Rubio presents complaints regarding

evidentiary matters and trial errors from his civil commitment trial. Rubio neither

challenged the constitutional effectiveness of his trial counsel in his application for

a writ of habeas corpus, nor did he include a reporter’s record of the trial in the

materials he presented with his application for a writ of habeas corpus. Nonetheless,

on appeal from the denial of his application Rubio complains that the trial court in

his original commitment proceeding: (1) failed to grant a pre-trial motion to quash

asserting a violation of the Thirteenth Amendment; (2) denied a motion for

continuance; (3) failed to admonish Rubio on a plea of nolo contendere; (4) made

erroneous evidentiary rulings; (5) allowed improper cross-examination; (6) allowed

the State to show the jury mug shots of Rubio; (7) rendered judgment on factually

insufficient evidence; (8) made confusing statements during jury selection; and (9)

submitted a defective charge to the jury. Claims that could have brought in a direct

appeal are not cognizable in habeas. Ex parte Cruzata, 220 S.W.3d 518, 520 (Tex.

Crim. App. 2007). Issues three through ten and eighteen present no cognizable issues

for habeas review.

7 In issues eleven, twelve, thirteen, fifteen, sixteen, and twenty-one, Rubio

asserts constitutional challenges to the SVP statute. Rubio complains (1) civil

commitment is punitive in nature; (2) the SVP statute violates separation of powers

and is void for vagueness; (3) the multidisciplinary team that screens offenders for

civil commitment meets in violation of the Open Meetings Act; (4) the SVP statute

permits the State to relitigate matters determined in a prior criminal proceeding in

violation of the doctrine of collateral estoppel; (5) the SVP statute violates

procedural due process by failing to provide for counsel during the screening

process; and (6) the SVP statute unconstitutionally permits the State to civilly

commit a person upon whom it has imposed sex offender registration requirements.

The Supreme Court of Texas held the SVP statute is civil rather than criminal in

nature long before the State petitioned to civilly commit Rubio. See In re

Commitment of Fisher, 164 S.W.3d 637, 653 (Tex. 2005). Because each of these

constitutional challenges could have been brought in the original civil commitment

proceeding, they are not cognizable in a post-judgment habeas proceeding. See Ex

parte Townsend, 137 S.W.3d at 81.

In issue fourteen, Rubio challenges on equal protection grounds the provision

in the SVP statute authorizing a trial court to deny, without a hearing, an

unauthorized petition for release if the petition is frivolous or, if the petitioner

previously filed an unauthorized petition for release and the judge determined on

8 review, or following a hearing, that the petitioner’s behavioral abnormality had not

changed to the extent that the petitioner is no longer likely to engage in a predatory

act of sexual violence. See Tex. Health & Safety Code Ann. § 841.123(c), (d). No

factual basis for this claim appears in Rubio’s habeas petition. He does not allege

that he filed an unauthorized petition for release. At any rate, mandamus, not habeas,

is the appropriate procedural vehicle to challenge the denial of a hearing on an

unauthorized petition for release from civil commitment. See In re Commitment of

Renshaw, No. 22-1076, 2023 WL 4535078, at *1 (Tex. July 14, 2023) (not yet

reported).

In issue seventeen, Rubio argues the SVP statute is unconstitutionally punitive

because it allows the State to confine a person who has been committed to outpatient

treatment without providing adequate sex offender treatment to that person. In his

habeas application, Rubio alleged, “Very little treatment takes place, 2-3 hours per

week. How can 2-3 hours treatment be said to serve the state’s purpose of treating

rather than punishing civil committed persons in Texas?”

That said, Rubio’s petition doesn’t allege how much treatment he personally

receives, and it fails to identify any standards for constitutionally adequate sex

offender treatment. In narrow circumstances, a person’s constitutionally protected

liberty interest in avoiding physical restraint may be overridden by statutes that

provide for civil detainment of persons who are unable to control their behavior and

9 who thereby pose a danger to the public health and safety. Kansas v. Hendricks, 521

U.S. 346, 357 (1997). Involuntary commitment statutes have been upheld when the

confinement is governed by appropriate procedures and evidentiary standards. Id.

(citing Foucha v. Louisiana, 504 U.S. 71, 80 (1992)). Thus, the mere fact that a

state’s civil commitment program includes restraining a person’s liberty interest

does not render the program punitive. Id. at 363.

Simply put, detention for the purpose of protecting the public from a person

who is unable to control his dangerousness, even without treatment, does not

necessarily transform a civil commitment proceeding into a criminal prosecution. Id.

at 364-65. We conclude the trial court did not abuse its discretion by denying habeas

relief on Rubio’s claim that the Texas SVP statute is unconstitutionally punitive, as

Rubio’s petition fails to state a factual basis that supports his claim.

In issue nineteen, Rubio claims he does not possess a behavioral abnormality

which meets the standard for civil commitment. The writ of habeas corpus is an

extraordinary remedy that is available only when the applicant has no other adequate

remedy at law. Carter, 521 S.W.3d at 347-48. Under the Texas civil commitment

statute, Rubio may file an unauthorized petition for release. See Tex. Health & Safety

Code Ann. § 841.122. Thus, since an avenue of relief from a civil commitment order

is available to those who are the subject of sexually violent civil commitment orders

if they establish they are no longer likely to engage in a predatory act of sexual

10 violence, habeas does not offer an alternative avenue of relief. Therefore, Rubio’s

claim alleging he no longer has a behavior abnormality was not a cognizable issue

for habeas review, so the trial court did not abuse its discretion by denying relief on

this ground.

In issue twenty, Rubio contends that if he suffers from a behavioral

abnormality he should be currently in treatment. When he filed the habeas

application, Rubio was incarcerated in the Texas Department of Criminal Justice.

While the appeal has been before this Court, Rubio completed his sentence and is

now housed in a Texas Civil Commitment Office facility. This issue is moot.

In issue twenty-two, Rubio contends the final judgment and order of civil

commitment are void because the judgment referenced section 841.003, which

defines “sexually violent predator”, and fails to reference the statute requires that a

judge or jury determine whether, beyond a reasonable doubt, the person is a sexually

violent predator. Compare Tex. Health & Safety Code Ann § 841.003, with §

841.062. A judgment is void only when the court rendering judgment had no

jurisdiction of the parties, no jurisdiction of the subject matter, no jurisdiction to

enter the judgment, or no capacity to act as a court. Browning v. Placke, 698 S.W.2d

362, 363 (Tex. 1985). All errors other than jurisdictional deficiencies render the

judgment merely voidable. Id. If the court had the authority to adjudicate a case, and

the court had jurisdiction over the parties and the subject matter, and the court did

11 not act outside its capacity as a court, the judgment is not void. Reiss v. Reiss, 118

S.W.3d 439, 443 (Tex. 2003). The final judgment in the record recites that the jury

unanimously found that Rubio is a sexually violent predator as defined in section

841.003 and ordered that he is civilly committed to outpatient treatment. Rubio

failed to allege any facts that, if true, would prove that the judgment is void. The trial

court did not abuse its discretion by denying habeas relief on this ground.

In issue twenty-three, Rubio argues the 2011 order of civil commitment is no

longer in effect, ostensibly because it was extinguished by his subsequent criminal

conviction. Rubio claims that in 2013, the violation of his civil commitment order

was considered in determining his sentence for an offense that resulted in a ten-year

prison sentence. See Tex. Penal Code Ann. § 12.45 (Admission of Unadjudicated

Offense). Assuming the stated facts are true, Rubio could not be criminally

prosecuted for the offenses that the trial court took into account in sentencing. But,

the civil commitment judgment is not an unadjudicated offense under section 12.45,

so the civil commitment judgment and order of commitment remained in force. The

trial court did not abuse its discretion by denying habeas relief on this ground.

We overrule the issues presented in the appeal and we affirm the trial court’s

order denying the application for a writ of habeas corpus.

12 AFFIRMED.

________________________________ JAY WRIGHT Justice

Submitted on December 6, 2022 Opinion Delivered July 27, 2023

Before Golemon, C.J., Horton and Wright, JJ.